AMERICAN  GOVERNMENT 


HINSDALE 


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LIBRARY 

THE  UNIVERSITY 
OF  CALIFORNIA 

SANTA  BARBARA 


PRESENTED  BY 
MARK   ELDREDGE 


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THE 


AMERICAN  GOVERNMENT 


NATIONAL  AND  STATE 


BY 


B.  A.  HINSDALE,  Ph.D.,  LL.  D. 

Late  Professor  of  the  Science  and  the  Art  of  Teaching  in  thb 
University   of   Michigan. 


FOURTH  EDITION 


NEW  YORK.-.CINCINNATI. -.CHICAGO 
AMERICAN    BOOK   COMPANY 


Cvf^ 


Copyright,    1891,    by    THE    REGISTER    PUBLISHING    COMPANY. 

*  Copyright,    1895  and   1900,  by   B.   A.   HINSDALE. 

Copyright,   1905,  by  MARY  L.   HINSDALE, 

Am.   Govt. 


PREFACE. 

The  study  of  Political  Science  has  received  a  great  impulse  in 
the  United  States  since  the  Civil  War.  In  the  schools,  the  change 
is  particularly  marked.  This  is  owing  to  the  direct  influence  of 
the  war,  to  the  increasing  number  and  difficulty  of  political  prob- 
lems attending  the  development  of  society,  and  to  the  growth  of 
interest  in  human  questions  all  over  the  civilized  world. 

The  change  in  the  character  of  the  work  done  in  schools  is 
almost  as  marked  as  the  change  in  its  quantity.  A  generation  ago 
such  work  was  practically  limited  to  the  study  of  the  Constitution 
of  the  United  States,  carried  on  in  a  very  narrow  way.  The  sole 
text-book  was  the  traditionary  "  Civil  Government "  that  still 
lingers  in  some  schools.  This  the  introduction  of  the  historical 
and  scientific  methods  of  investigation  and  teaching  has  changed 
for  the  better.  The  field  of  study  has  continued  to  widen  until,  in 
the  best  schools,  it  can  no  longer  be  covered  even  by  the  ablest 
students,  and  it  has  become  a  serious  matter  to  know  what  por- 
tion of  it  to  cultivate. 

As  the  result  of  much  experience  both  as  a  student  and  as  a 
teacher  of  the  subject,  the  author  is  of  the  opinion  that,  not  only 
in  the  high  school  and  the  academy,  but  also  in  the  college,  the 
American  Government  should  still  be  the  central  subject  of  study 
in  this  field.  This  opinion  he  holds  on  both  practical  and  peda- 
gogical grounds.  He  is  further  of  the  opinion,  that  this  study 
should  embrace  a  comprehensive  view  of  the  origin  and  growth 
of  the  American  Government,  and  an  adequate  historical  and 
exegetical  commentary  upon  our  dual  constitution.  National  and 
State.  He  has  accordingly  attempted  to  furnish  a  text-book  em- 
bodying these  ideas. 

The  university  student  may  profitably  study  books  devoted  to 
the  principles  of  constitutional  law ;  but  such  a  treatise  is  not  the 
text-book  that  the  average  college  student,  with  his  power  of 
generalization  and  compass  of  facts,  needs.  He  will  find  a  care- 
ful study  of  the  Constitution  of  the  United  States,  accompanied  by 
suitable  historical  discussion  and  illustration,  far  more  profitable 
than  constitutional  disquisitions.  Hence,  the  central  position  in 
this  book  is  assigned  to  the  National  Constitution.  Still,  it  is  not 
so   much   the  constitution   as   a   document   written   in    1787,  as   the 

(iii) 


iv  THE  AMERICAN  GOVERNMENT. 

constitution  developed  by  the  life  of  the  people  and  construed  by 
Congress,  by  the  Executive,  and  by  the  Courts  as  shown  in  our 
legislative,  administrative,  and  juridical  history.  It  is  the  living 
and  working  constitution  that  concerns  the  American  youth,  and 
not  simply  a  document;  the  constitution  in  action,  and  not  the 
constitution  in  a  book.  Hence  the  author  has  striven,  in  accord 
with  the  later  and  better  tendency  in  treating  such  subjects,  to 
make  his  book  strong  in  its  historical  elements.  Constitutions  are 
not  made,  they  grow. 

Hitherto  the  National  Government  has  occupied  disproportion- 
ate attention  in  teaching  the  American  Government.  The  States 
have  almost  fallen  out  of  sight.  In  this  treatise,  due  prominence 
has  been  given  to  the  fact  that  this  government  is  dual  or  federal, 
and  that  the  citizen  has  two  loyalties  and  two  patriotisms.  It  is 
written  in  the  spirit  of  the  aphorism :  An  indestructible  Union 
composed  of  indestructible  States.  The  growth  of  this  dual  sys- 
tem has  been  traced  from  its  roots  in  the  first  feeble  English  set- 
tlements planted  in  Virginia  and  Massachusetts.  But  it  has  not 
been  thought  necessary,  or  even  desirable,  to  describe  the  State 
system  at  as  much  length  as  the  National  system. 

It  would  have  been  easy  greatly  to  extend  the  references  to 
books.  But  an  over-extended  literature  commonly  defeats  its 
own  ends.  The  common  student  especially  is  lost  in  the  multitude 
of  titles  cited.  The  aim  has  therefore  been  to  make  a  helpful 
bibliography  rather  than  an  extensive  one. 

Both  in  the  original  preparation  of  this  work  and  in  its  subsequent 
thorough  revision,  the  author  took  due  pains  to  secure  accuracy  of 
fact  and  statement.  But  errors  will  creep  into  a  book  that  contains 
so  much  matter-of-fact  material  as  this  one  contains.  In  the  years 
that  have  elapsed,  the  author  has  carried  on  a  persistent  warfare 
against  these  original  errors,  correcting  them  when  they  were  discov- 
ered, and  it  is  believed  that  few  of  them  now  remain.  In  this  work 
he  has  enjoyed  the  cooperation  of  a  considerable  number  of  corre- 
spondents, who  were  using  the  work  as  a  text-book  or  had  read  it. 

Once  more,  a  good  book  on  a  living  government  is  necessarily  a 
live  book.  Government  is  all  the  time  changing,  and  the  book  must 
change  as  well.  To  keep  this  work  abreast  of  the  latest  knowledge 
has  been  the  ambition  of  the  author  and  publishers  alike  from  the 
day  of  the  first  "revision.  A  close  comparison  of  this  last  revision 
with  the  first  revision,  not  to  go  back  to  the  original,  will  show  that 
many  alterations  have  been  made  in  the  interest  of  perfect  accuracy 
and  up-to-date  knowledge.  This  revision  is  brought  down  to  the 
adjournment  of  the  first  session  of  the  Fifty-sixth  Congress,  and  so 
includes  the  recent  important  legislation  in  regard  to  financial  mat- 
ters and  the  new  Territorial  governments. 


PREFACE.  V 

The  author  may  perhaps  be  permitted  to  remark  that  this  book 
has  been  received  by  students,  teachers,  and  others  with  many  marks 
of  favor;  ajad  he  wishes  to  express  his  thanks  to  such  persons  as 
have  put  it  into  practical  use  or  have  borile  testimony  to  its  merits. 
Still  more,  he  is  fully  appreciative  of  the  assistance  of  those  friends, 
both  known  and  unknown,  who  have  helped  him  to  make  the  book 
less  unworthy  of  the  public  favor.  So  this  third  time  he  commits 
The  American  Government  to  the  favorable  consideration  of  stu- 
dents and  teachers  of  this  important  branch  of  study. 

B.  A.  Hinsdale. 

The   University  of  Michigan,  June,  igoo. 

Note. — Since  the  foregoing  Preface  was  written  The  American 
Government  has  been  entirely  reset,  and  new  plates  have  been  made. 
An  opportunity  has  thus  been  afforded  for  further  revision.  The 
book  has  been  brought  down  to  the  assembling  of  the  Fifty-eighth 
Congress.  To  Chapter  LIV.  some  matter  has  been  added  on  the 
subject  of  Party  Machinery. 

Mary  L.  Hinsdale. 

Ann  Arbor,  October,  1904. 


CONTENTS. 


To  Teachers 

Introduction. — The  Science  of  Politics 


PAGE 

1-8 
9-24 


PART    I.— THE   MAKING    OF   THE  AMERICAN 
GOVERNMENT. 


Chapter  I. — The  Thirteen  English  Colonies  Planted 
Chapter  II. — How  the  Colonies  were  Governed  . 

Chapter  III. — America  Independent 

Chapter  IV. — The   Formation   of   the   Union     .     , 
Chapter  V. — The    Continental    Congress,    1 775-1 781 
Chapter  VI. — The  Confederation,  1781-1789  .     . 
Chapter  VII. — The    Federal    Convention    Called 
Chapter  VIII. — Work  before  the  Convention 
Chapter  IX. — The   Constitution   Framed  . 
Chapter  X. — Ratification   of  the   Constitution     . 
Chapter  XI. — The  Constitution  Goes  into  Operation 

PART  II.— THE  NATIONAL  GOVERNMENT. 

Chapter  XII. — The  National  and  State  Governments     . 

Chapter  XIII. — The  Nature  of  the  Constitution     .     . 

Chapter  XIV. — The  Sources  of  the  Constitution     . 

Chapter  XV. — The    Constitution    in    Outline     .... 

Chapter  XVI. — Vesting    the    Legislative    Power     .     . 

Chapter  XVII. — Composition  and  Organization  of  the 
House  of  Representatives 

Chapter  XVIII. — Apportionment  of  Representatives  under 
the   Constitution        .      .      .      .    ' 

Chapter  XIX. — Composition  and  Organization  of  the  Sen- 
ate     

Chapter  XX. — Elections    of    Congressmen 

Chapter  XXI. — Impeachments 

Chapter  XXII. — The  Powers  of  the  Separate  Houses  . 

Chapter  XXIII. — Rights  of  Senators  and  Representatives 

Chapter  XXIV. — Enacting  Laws 

Chapter  XXV. — The   General   Powers  of  Congress 

Chapter  XXVI. — The  Limitations  of  the  Union     . 

Chapter  XXVII. — The  Limitations  of  the  States 

Chapter  XXVIII. — Vesting  the  Executive  Power 

Chapter  XXIX. — Election  of  President  and  Vice  President 

(vii) 


25-35 
36-51 
52-63 
64-72 
73-76 
77-86 
87-90 
91-99 
100-105 
106-113 
114-116 


I 17-124 
125-130 
131-136 
137-143 
144-146 

147-154 
155-159 

160-163 
164-169 
170-175 
176-181 
182-186 
187-193 
194-235 
236-242 
243-247 
248-250 
251-259 


viii  CONTENTS. 

PACK 

Chapter  XXX.— The  Failure  of  the  Electoral  Plan     .     .  260-264 
Chapter  XXXI. — The  Qualifications  and  Removal  of  the 

President 265-268 

Chapter  XXXII. — Powers  and  Duties  of  the  President     .  269-283 

Chapter  XXXIII. — The   Executive   Departments     .     .     .  284-291 

Chapter  XXXIV. — Vesting  the   Judicial    Power     .     .     .  292-296 

Chapter  XXXV. — The  Extent  of  the  Judicial  Power     .     .  297-300 

Chapter  XXXVI. — The  Jurisdiction  of  the  Several  Courts  301-305 

Chapter  XXXVIL— Trial    by    Jury 306-311 

Chapter  XXXVIII. — Treason 312-317 

Chapter  XXXIX. — Constitutional   Law :   the  Judiciary     .  318-322 

Chapter  XL. — The  Rights  and  Duties  of  States     .     .     .  323-326 

Chapter  XLI. — New  States :  the  Territorial  System     .     .  327-335 

Chapter  XLII. — National  Guarantees  to  the  States     .     .  336-339 

Chapter  XLIII. — Amendments 340-342 

Chapter  XLIV. — The  Supremacy  of  the  Union  .  .  .  343-345 
Chapter  XLV. — Theories  of  the  Union :  the  Civil  War  .  346-349 
Chapter  XLVI. — Ratification  of  the  Constitution  .  .  .  350-351 
Chapter  XLVIL— The  Bill  of  Rights  (Amendments  I.— X.)  352-356 
Chapter  XLVIII. — Slavery  and  Reconstruction  (Amend- 
ments XIII.— XV.) 357-368 

PART  III.— THE  STATE  GOVERNMENTS. 

Chapter  XLIX.— Relations  of  the  States  to  the  Union     .     369-371 

Chapter  L. — The  State  Constitutions. 372-377 

Chapter  LI. — The  State  Legislatures 378-383 

Chapter  LII. — The  State  Executives 384-387 

Chapter  LIII. — The    State    Judiciaries 388-391 

Chapter  LIV. — Suffrage,  Eligibility  to  Office,  and  Elections    392-399 

Chapter  LV. — Local  Government 400-410 

Chapter  LVI. — State  Education 411-419 

Conclusion. — Nature  of  the  American  Government  .  .  420-424 
Appendix. — Documents  Illustrative  of  the  Growth  of  the 
American  Union:  The  Mayflower  Compact,  1620; 
The  New  England  Confederation,  1643;  Penn's  Plan 
of  Union,  1697;  Franklin's  Plan  of  Union,  1754)  Dec- 
laration of  Rights,  1765;  Declaration  of  Rights,  1774; 
The  Non-Importation  Agreement,  1774;  The  Declara- 
tion of  Independence,  1776;  Articles  of  Confedera-  , 
tion,  1777;  Constitution  of  the  United  States,  1787; 
Amendments  to  the   Constitution,   1791,   1798,   1804, 

1865,    1868,    1870 425-480 

Index  of  Subjects 481-483 

Bibliographical  Index 485-488 

Questions 489-493 


SUGGESTIONS  TO  TEACHERS. 

This  book  has  been  written  with  three  classes  of  persons  con- 
stantly in  mind.  These  are  students  who  are  studying  the  American 
Government  in  colleges,  students  who  are  studying  it  in  high  schools, 
academies,  or  normal  schools  of  high  grade,  and  teachers  of  history 
and  civics  in  elementary  and  secondary  schools.  Its  adaptation 
at  once  to  college  and  secondary  school  students  will  be  explained 
further  on ;  but  here  it  may  be  remarked  that  teachers  in  schools 
who  are  using  a  book  of  lower  grade  than  this  one,  often  want,  and 
perhaps  still  oftener  need,  a  book  of  high  grade  for  their  own  study 
and  improvement.  Still  further,  the  book  is  adapted,  it  is  confi- 
dently believed,  to  the  wants  of  several  important  classes  of  persons 
who  are  outside  of  schools  altogether ;  young  men  and  women  carry- 
ing on  private  study,  members  of  improvement  societies  and  reading 
clubs  and  circles,  editors  and  political  writers  and  speakers  desiring 
a  manual  of  political  information  for  handy  reference,  and  intelligent 
citizens  generally,  who  so  often  find  it  necessary  to  enlarge  or  to 
refresh  their  knowledge  of  the  government  under  which  they  live. 

It  will  be  a  service  to  all  these  classes  of  persons,  and  particularly 
to  teachers,  to  state  the  cardinal  features  of  the  work. 

I.  The  range  and  variety  of  topics  introduced,  the  fullness  of 
knowledge  furnished,  and  the  discriminating  judgment  shown  in  the 
selection  of  both  topics  and  material.  A  large  circle  of  reading 
and  study  has  been  drawn  upon :  books  of  history,  volumes  of  stat- 
utes and  law  reports,  treatises  on  political  science  and  on  constitu- 
tional law,  reports  of  the  public  departments  and  bureaus,  mono- 
graphs, publications  of  learned  societies,  lives  and  works  of  public 
men,  etc.  There  is  not  now  before  the  public  a  volume  of  equal  size, 
if  indeed  of  any  size,  that  will  favorably  compare  with  The  Ameri- 
can Government  in  these  particulars. 

II.  The  manner  in  which  the  matter  has  been  distributed  and 
organized.  First,  mention  should  be  made  of  the  grand  divisions  of 
the  subject:  The  Making  of  the  Government,  its  National  side,  and 
its  State  side.  Particular  pains  have  been  taken  to  present  these  in 
proper  proportion  and  equipoise.  Next  is  the  careful  distribution  of 
the  matter  in  chapters  embracing  distinct  subjects.  It  will  be  ob- 
served that  there  are  no  "  continued  "  chapters.  And  finally,  the 
handling  of  the  paragraph.  The  author  has  constantly  made  it  a 
point  to  seize  clearly  some  single  topic,  or  phase  of  a  topic,  to  make 

AM.  GOV. 1  (i) 


2  THE  AMERICAN  GOVERNMENT. 

it  the  unit  of  treatment,  and  then  to  mark  the  paragraph  off  from  all 
other  paragraphs  by  giving  it  a  distinct  title  and  number,  thus  arrest- 
ing and  fixing  the  attention  of  the  reader  upon  the  successive  units 
of  thought.  When  once  the  student  has  taken  in  the  scope  of  the 
chapter,  or  large  division  of  the  chapter,  if  there  be  such  divisions, 
the  next  thing  for  him  to  do  is  to  grasp  firmly  the  idea  conveyed 
by  the  title  of  the  paragraph  before  him,  proceeding  thus  in  order. 
At  this  point,  as  in  the  case  of  other  books  similarly  constructed, 
the  inexperienced  student  needs  some  assistance  from  his  teacher. 
"  Side  heads,"  as  these  titles  of  paragraphs  are  called,  serve  as 
handles  by  which  to  seize  the  salient  features  of  the  subjects  treated; 
and  many  an  excellent  treatise  suffers  from  want  of  them,  offering 
no  projections  upon  which  the  student  can  easily  lay  hold,  but  only 
a  smooth  surface. 

III.  The  adaptation  of  the  book,  as  is  believed,  to  the  needs  of 
students  and  other  persons  who,  for  various  reasons,  wish  to  give 
different  amounts  of  time  to  the  subject,  pursuing  it,  some  more  and 
some  less  thoroughly,  and  so  to  different  grades  of  schools,  as  the 
college  and  high  school  or  academy.  Owing  to  the  importance  of 
this  third  topic,  it  will  be  well  to  go  somewhat  into  detail. 

1.  The  Introduction  deals  with  the  leading  conceptions  and  terms 
of  political  science;  it  is  not  an  integral  part  of  the  book,  and 
teachers  can  make  more  or  less  use  of  it,  or  none  at  all,  as  they  may 
elect. 

2.  Some  teachers  who  have  taught  the  Making  of  the  Government 
as  a  part  of  history  will  wish  practically  to  limit  their  instruction 
to  the  Government  as  it  is  under  its  National  and  State  aspects. 
These  should  either  omit  the  Introduction  and  Part  I.  altogether,  or 
touch  them  but  lightly. 

3.  Others  will  wish  to  teach  the  National  Government,  with 
merely  incidental  reference  to  the  States.  These  should  omit  Part 
III. 

4.  Still  others  may  wish  only  a  Manual  of  the  Constitution,  with 
matter  on  the  two  other  topics  to  which  they  can  refer  their  students. 
These  will  find  such  a  manual  in  Part  II. 

5.  Two  kinds  of  type  have  been  used  throughout.  The  main 
propositions,  making  up  the  skeleton  of  the  discussion,  are  put  in 
the  larger  type;  the  subordinate  propositions,  devoted  to  an  enlarged 
view  of  the  subject,  or  to  the  illustration  of  particular  topics,  in 
smaller  type.  The  result  is  that  nearly  all  the  chapters  contain  a 
double  view  of  their  subject, —  the  one  more  compendious,  the  other 
more  elaborate ;  or,  in  other  words,  two  books  have  in  reality  been 
put  inside  the  same  covers.  Take,  for  example,  Chapter  I.,  the 
subject  of  which  is,  "The  Thirteen  English  Colonies  Planted." 
The  series  of  paragraphs,  "  The  Right  of  Discovery,"  "  First  Divi- 


SUGGESTIONS  TO  TEACHERS.  3 

sion  of  North  America,"  "  London  and  Plymouth  Companies,"  "  Col- 
onies Planted  by  Companies,"  "  Colonies  Planted  by  Proprietors," 
"  Voluntary  Colonies,"  "  Agency  of  the  Home  Government," 
"  Classes  of  Colonists,"  "  Ideas  of  the  English  Colonists,"  and  "  The 
Rights  of  Englishmen,"  furnish  an  outline  to  those  who  wish  merely 
an  outline.  The  special  treatment  of  the  Southern  Colonies, —  Vir- 
ginia, Maryland,  the  Carolinas,  and  Georgia;  the  Northern  Colonies, 
embracing  the  Plymouth  Company,  Plymouth,  the  Plymouth  Com- 
pact, Massachusetts,  Connecticut,  Rhode  Island,  and  New  Hamp- 
shire ;  the  Middle  Colonies, —  New  York,  New  Jersey,  Pennsylvania, 
and  Delaware, —  will  enlarge  the  field  and  meet  the  wants  of  those 
who  wish  a  fuller  view  of  American  colonization.  Or  take  Chapter 
III.,  "  America  Independent."  The  paragraphs  in  larger  type  will 
give  a  limited  view,  while  these  in  connection  with  those  in  smaller 
type  will  give  a  comprehensive  view,  of  the  movement  for  independ- 
ence. 

The  obvious  conclusion  is  this :  If  the  time  allotted  to  the  subject, 
and  the  ability  of  the  pupil  or  class,  arc  sufficient  to  justify  the 
attempt,  all  the  matter  can  be  presented ;  but  if  the  time  allotted  to 
the  subject,  or  the  ability  of  the  class,  does  not  admit  of  such  ex- 
tended treatment,  then  the  work  can  be  easily  limited  to  suit  cir- 
cumstances. What  the  author  regards  as  good  reasons  for  teaching 
the  Federal  Government  before  the  State  Governments,  at  the  stage 
of  progress  that  this  work  represents,  are  presented  in  Chapter 
XII.  Those  teachers  who  do  not  concur  in  those  reasons  or  who 
have  some  special  end  to  gain,  can  reverse  the  order  of  Parts  II.  and 
III.  If  Part  I.  is  to  be  studied  at  all,  no  matter  how  hastily,  it 
should  be  taken  before  the  other  two,  or  either  of  them. 

A  competent  teacher  of  the  subject  of  Government  will  naturally 
turn  his  mind  to  its  pedagogical  side.  The  question  will  arise. 
What  is  the  educational  value  of  the  study?  To  this  question  a  few 
remarks  may  be  directed. 

Below  the  college,  at  least,  the  principal  end  of  the  study  should 
^  be  practical.  The  study  of  government  is  the  pursuit  of  political 
knowledge,  and  such  knowledge  is  valuable,  first  of  all,  for  practical 
purposes.  The  art  of  politics,  or  of  government,  is  one  of  the  most 
important  arts.  It  concerns,  and  should  interest,  everybody.  Man 
is  a  social  being;  he  lives  in,  and  must  live  in,  society.  But  society 
cannot  exist  without  government,  and  this  want  again  is  met  by 
man's  political  nature.  Still  more,  he  attains  his  fullest  perfection 
in  that  social  condition  which  we  call  civil  society,  or  the  state ;  and 
this  condition  involves  government  of  an  elaborate  and  highly  organ- 
ized form.  These  ideas  have  been  duly  set  forth  in  the  Introduction. 
However,  the  point  is  not  there  made,  or  at  least  is  not  insisted 
upon,  that  the  successful  operation  of  a  highly  organized  govern- 


4  THE  AMERICAN  GOVERNMENT. 

ment  intimately  depends  upon  the  education  and  character  of  the 
citizens.  Aristotle  insisted  that  education  must  have  regard  to  the 
constitution,  and  that  it  is  the  great  means  of  uniting  the  state. 
"  The  citizen  should  be  molded,"  he  says,  "  to  suit  the  form  of  gov- 
ernment under  which  he  lives.  For  each  government  has  a  peculiar 
character,  which  originally  formed,  and  which  continues  to  preserve 
it.  The  character  of  democracy  creates  democracy,  and  the  character 
of  oligarchy  creates  oligarchy ;  and  always  the  better  the  character 
the  better  the  government."  He  argues  further  that  "  women  and 
children  must  be  trained  by  education  with  an  eye  to  the  state,  if 
the  virtues  of  either  of  them  are  supposed  to  make  any  difference  in 
the  virtues  of  the  state.  And  they  must  make  a  difference;  for  the 
children  grow  up  to  be  citizens,  and  half  the  free  persons  in  a  state 
are  women."  Montesquieu  also  argues  that  education  should  be  rel- 
ative to  the  principles  of  government.  "  The  laws  of  education  are 
the  first  impressions  we  receive,  and,  as  they  prepare  us  for  civil  life, 
each  particular  family  ought  to  be  governed  pursuant  to  the  plan  of 
the  great  family,  which  comprehends  them  all."  While  these  re- 
marks apply  with  force  to  governments  of  every  kind,  they  apply 
with  greatest  force  to  a  democracy  or  republic,  where  the  people 
themselves  do  the  governing,  either  directly  or  indirectly.  No  people 
that  has  been  molded  by  an  exclusively  monarchical  or  aristocratical 
society,  and  is  familiar  only  with  the  corresponding  institutions, 
can  carry  on  a  free  government.  In  his  Farewell  Address  Wash- 
ington insisted  that  the  more  potent  public  opinion  is  in  any  country, 
the  greater  the  need  of  its  being  intelligent ;  and  he  might  have 
added,  and  particularly  upon  political  subjects. 

Attention  may  be  directed  to  three  points  especially.  The  first  is 
that  the  American  pupil  should  be  taught  his  rights  under  the  gov- 
ernment ;  the  second  is  that  he  should  be  taught  his  duties  as  related 
to  those  rights ;  and  the  third  is  that  a  spirit  should  be  created  that 
will  lead  him  to  insist  upon  the  one  and  to  perform  the  other.  Un- 
less the  great  body  of  citizens  living  under  a  republic  shall  measur- 
ably conform  to  this  standard  of  activity,  that  is,  insist  upon  their 
rights  and  discharge  their  duties  to  the  state,  the  republic  cannot 
long  be  maintained.  Professor  Bryce,  in  the  article  that  is  referred 
to  below,  lays  deserved  emphasis  upon  this  point.  He  says  that 
teachers  should  not  be  deterred  by  the  abstractness  of  the  subject 
"  from  trying  to  make  the  pupils  understand  the  meaning  of  such 
terms  as  the  nation,  the  state,  and  the  law."  "  You  need  not  trouble 
yourself,"  he  goes  on  to  say,  "  to  find  unimpeachable  logical  defini- 
tions of  these  terms ;  that  is  a  task  which  still  employs  the  learned. 
What  is  wanted  is  that  he  should  grasp  the  idea,  first,  of  the  com- 
munity—  a  community  inhabiting  a  country  united  by  various  ties, 
organized  by  mutual  protection,  mutual  help,  and  the  attainment  of 


SUGGESTIONS  TO  TEACHERS.  5 

certain  common  ends;  next,  of  the  law,  as  that  which  regulates  and 
keeps  order  in  this  community ;  next,  of  public  officers,  great  or 
small,  as  those  whom  the  law  sets  over  us  and  whose  business  it  is 
to  make  us  obey  the  law,  while  they  also  obey  it  themselves."  This 
counsel  is  directed  to  the  teacher  of  the  school ;  and  it  is  not  going 
too  far  to  insist  that  the  pupil  who  leaves  the  elementary  school  at 
the  close  of  its  course  of  study  should  be  well  grounded  in  these 
ideas.  Such  teaching  will  not  fail  to  develop  in  good  measufe  that 
high  civic  spirit  which  has  been  so  characteristic  of  the  great  com- 
monwealths and  which  is  so  essential  to  good  government. 

But  government,  or  politics,  is  more  than  an  art ;  it  is  a  science  as 
well.  Strictly  speaking,  the  exclusive  pursuit  of  the  study  as  a  sci- 
ence does  not  look  directly  to  practical  ends,  but  rather  to  disciplin- 
ary and  culture  ends.  Now  the  aim  is  the  formation  and  the  adorn- 
ing of  the  mind.  To  a  degree  this  advantage  will  attend  the  work 
below  the  college,  if  it  is  properly  done,  since  the  guidance  value 
and  the  disciplinary  value  of  study  to  a  considerable  extent  overlap. 
In  the  college  or  university  this  second  end  will  come  much  more 
distinctly  into  view.  It  may  perhaps  be  assumed  that  the  student 
has  sufficient  political  information  to  answer  the  direct  ends  of  citi- 
zenship ;  but  he  should  not  assume  that  the  study  has  no  further 
interest,  for  it  is  a  great  instrument  of  mental  improvement.  It 
would  be  strange  indeed  if  such  a  book  as  Aristotle's  Politics  should 
have  less  disciplinary  and  culture  value  than  a  book  dealing  with 
birds;  insects,  or  fishes. 

A  second  pedagogical  question  may  arise,  viz :  What  methods  of 
teaching  should  be  employed?  This  question  is  dealt  with,  as  far  as 
it  relates  to  this  book,  in  Chapter  XII.  For  the  rest,  it  will  suffice  to 
refer  the  reader  to  a  few  authorities  who  deal  with  that  subject. 
Unfortunately,  the  quantity  of  pedagogical  literature  that  deals  di- 
rectly with  the  study  of  government  is  small. 

Compayre  has  a  chapter  entitled  "  Morals  and  Civic  Instruction," 
in  his  Lectures  on  Pedagogy.  Mr.  Herbert  Spencer  pays  some  at- 
tention to  teaching  politics  in  his  essay,"  What  Knowledge  is  of  Most 
Worth?"  which  constitutes  the  first  chapter  of  his  well-known  work 
entitled  Education.  Mr.  C.  F.  Crehore  has  an  article,  "  The  Teach- 
ing of  Civics  in  Schools,"  in  Education,  Vol.  VII.  (1887),  p.  264;  a 
second  article,  "  Foundation  Principles  of  Government,"  p.  546  of  the 
same  volume  of  the  same  publication ;  and  still  a  third,  "  Jenkins's 
Bend :  A  Primary  Study  in  Government,"  p.  547.  Mr.  J.  E.  Vose 
is  the  author  of  two  articles  entitled,  "  Methods  of  Instruction  in 
Civics,"  found  on  pp.  531  and  617  of  the  same  volume  of  Education. 
Mr.  J.  W.  McDonald  has  a  paper,  "  Teaching  Civics,"  in  The  Acad- 
emy, Vol.  V.  (1890),  p.  373.  The  Right  Honorable  James  Bryce's 
article,  the  "  Teaching  of  Civic  Duty,"  found  in  The  Contemporary 


6  THE  AMERICAN  GOVERNMENT. 

Review,  July,  1893,  p.  14,  should  npt  be  overlooked.  Dr.  W.  T.  Har- 
ris also  has  some  valuable  remarks  in  the  "  Report  on  Correlation 
of  Studies,"  which  forms  the  second  patt  of  the  Report  of  the  Com- 
mittee of  Fifteen.  See  The  Educational  Review,  March,  1895;  also 
numerous  republications  of  the  same  report.  The  author  also  refers 
to  the  chapter  on  "  Teaching  Civics,"  in  his  work  entitled  How  to 
Study  and  Teach  History. 

In  the  course  of  the  work,  occasional  points  of  likeness  and  un- 
likeness  of  the  American  government  to  the  English  government 
have  been  mentioned.  Comparative  study  of  political  institutions 
can  be  extended  by  the  teacher  of  the  present  subject  in  every  direc- 
tion, limited  only  by  his  own  knowledge  and  the  ability  and  time  of 
his  class.    To  facilitate  such  study,  a  few  references  are  here  given. 

Borgeaud,  Adoption  and  Amendment  of  Constitutions  in  Europe 
and  America. 

Dr.  E.  A.  Freeman,  Comparative  Politics. 

Frank  J.  Goodnow,  Comparative  Administrative  Law.  An  Analy- 
sis of  the  Administrative  Systems,  National  and  Local,  of  the  United 
States,  England,  France,  and  Germany. 

J.  N.  Larned,  History  for  Ready  Reference,  from  the  best  Histo- 
rians, Biographers,  and  Specialists.  This  work,  which  consists  of 
five  volumes,  contains  the  following  documents :  Constitution  of  the 
Argentine  Republic,  Constitution  of  Brazil,  Constitution  of  Canada, 
Constitution  of  England,  Constitution  of  France,  Constitution  of 
Germany,  Constitution  of  Japan,  Constitution  of  Lycurgus,  Constitu- 
tion of  Mexico,  Constitution  of  Norway,  Constitution  of  Prussia, 
Constitution  of  Sweden,  Constitution  of  the  Swiss  Confederation, 
Constitution  of  Venezuela.  Reference  may  also  be  made  to  the  ref- 
erences and  notes,  relating  to  still  other  constitutions. 

J.  Scott  Keltic,  The  Statesman's  Year  Book,  Statistical  and  His- 
torical Annual  of  the  World. 

J.  J.  Lalor,  Cyclopcedia  of  Political  Science,  Political  Economy, 
and  United  States  History. 

All  the  principal  cyclopedias  contain  valuable  articles  on  political 
subjects.  .It  will  not  be  amiss  to  refer  to  some  special  authorities 
relating  to  four  or  five  leading  governments. 

Canada.  Munro,  The  Constitution  of  Canada;  Bourinot,  A 
Manual  of  the  Constitutional  History  of  Canada  from  the  Earliest 
period  to  the  year  1888,  including  the  British  North  American  Act 
of  1867,  etc. 

England.  Fonblanque,  How  we  are  Governed,  or  the  Crown, 
the  Senate,  and  the  Bench;  Bagehot,  The  English  Constitution, 
New  and  Revised  Edition;  Dicey,  Lectures  Introductory  to  the 
Study  of  the  Law  of  the  Constitution;  Anson,  The  Law  and  Custom 
of  the  Constitution,  Part  I.,  "Parliament,"  Part  II.,  "The  Crown"; 


SUGGESTIONS  TO  TEACHERS.  7 

Craik,  The  English  Citizen, —  a  series  of  short  books  on  his  rights 
and  responsibilities, —  12  volumes. 

France.  Lebon  and  Pelet,  France  as  it  is, —  especially  written 
for  English  readers,  and  translated  from  the  French ;  Constitution 
and  Organic  Laws  of  France  from  1875-1889, —  translated,  with  an 
historical  introduction,  by  C.  F.  A.  Currier.  Annals  of  the  Amer- 
ican Academy  of  Political  and  Social  Science,  Vol.  III.,  Supplement, 
March,  1893. 

Germany.  James,  The  Federal  Constitution  of  Germany,  with 
an  Historical  Introduction;  Dawson,  Germany  and  the  Germans; 
Turner,  A  Sketch  of  the  German  Empire  from  Early  Times  to  the 
Dissolution  of  the  Empire;  Bryce,  The  Holy  Roman  Empire. 

Switzerland.  Vincent,  State  and  Federal  Government  in 
Switzerland ;  Adams  and  Cunningham,  The  Swiss  Confederation; 
Lowell,  "The  Referendum  in  Switzerland  and  America"  (The  At- 
lantic Monthly,  April,  1894). 


THE  AMERICAN  GOVERNMENT. 


•    INTRODUCTION. 

THE  SCIENCE  OF  POLITICS. 
References. 

I.  Works  on  Politics. —  Aristotle,  The  Politics;  Burgess,  Polit- 
ical Science  and  Constitutional  Law,  Part  I.,  Books  I.,  II. ;  Pollock, 
Introduction  to  the  History  of  the  Science  of  Politics;  Sidgwick, 
Elements  of  Politics;  Wilson,  The  State,  I.,  II.;  Woolsey,  Political 
Science;  Lieber,  Civil  Liberty  and  Self -Government.  See  also  the 
articles  on  "  Political  Science  "  and  "  Politics,  Nature  and  Character 
of,"  in  Lalor's  Cyclopcedia  of  Political  Science,  etc. 

II.  The  State,  Definitions  of. —  Cooley,  Constitutional  Limita- 
tions, Chap.  I. ;  Phillimore,  Commentaries  upon  International  Law, 
Part  I.,  Chap.  I. ;  Wheaton,  Elements  of  International  Law,  Part  I., 
Chap.  II. 

III.  On  Federal  Government. — Fiske,  American  Political  Ideas; 
Freeman,  History  of  Federal  Government,  Chap.  II. ;  Hart,  Intro- 
duction to  the  Study  of  Federal  Government. 

IV.  On  Constitutions. —  Cooley,  Comparativt  Merits  of  Writ- 
ten and  Prescriptive  Constitutions  (reprinted  from  Harvard  Law 
lournal);  Jameson,  The  Constitutional  Convention,  Chaps.  I.-III. ; 
Tiedeman,  The  Unwritten  Constitution  of  the  U.  S. 

V.  Sociology. —  Small  and  Vincent,  Introduction  to  the  Study  of 
Society. 

I.    Society. 

I.  Man  a  Social  Being. — It  is  a  famous  saying  of  Aristotle's 
that  man  has  a  social  instinct  planted  in  him  by  nature.  The  mean- 
ing of  this  saying  is,  that  men  tend  to  live  together  and  to  depend 
upon  one  another.    In  all  ages  and  countries  we  find  them  sharing 

(9) 


10  THE  AMERICAN  GOVERNMENT. 

a  more  or  less  common  life.  They  cannot  make  progress,  be  happy, 
or  in  the  end  even  exist  otherwise.  There  are  indeed  men  called 
hermits,  who  bury  themselves  in  the  solitude  of  some  forest  or  des- 
sert, mountain  or  island.  But  these  men  are  always  few  in  number; 
besides,  they  are  born  and  reared  in  society,  and  they  either  return 
to  it,  or  they  become  more  and  more  like  the  animals  in  their  way  of 
living,  and  finally  die  alone.  Men  cannot  live  separate  and  apart; 
they  must  obey  their  social  nature  and  live  together,  or  they  will 
lose  their  humanity.  As  Aristotle  says :  "  The  individual  when  iso- 
lated is  not  self-sufficient ;  and  therefore  he  is  like  a  part  in  relation 
to  the  whole.  But  he  who  is  unable  to  live  in  society,  or  who  has 
no  need,  because  he  is  sufficient  for  himself,  must  be  either  a  beast 
or  a  god ;  he  is  no  part  of  a  state."  ^  Or,  as  another  writer  puts  it : 
"  A  man  would  no  more  be  a  man  if  he  lived  alone  in  the  world, 
than  a  hand  would  be  a  hand  without  the  rest  of  the  body." 

2.  Society  Defined. — Men  living  together  in  human  relations 
constitute  society  in  the  general  sense  of  the  term.  The  men  so  liv- 
ing in  any  region  or  district  form  a  society.  But  since  these  local 
societies  are  also  connected ;  since  they  have  much  in  common ;  and 
since  men  have  one  social  nature,  we  also  use  the  word  in  the  broad- 
est sense,  and  speak  of  the  human  race  as  forming  one  society. 
Social  means  pertaining  to  society.  The  science  of  society  is  called 
Sociology.  The  Latin  verb  sociare  means  to  meet  together,  to  asso- 
ciate ;  the  noun  socius,  a  fellow  or  sharer,  an  associate  or  compan- 
ion ;  and  societas,  from  which  society  is  derived,  a  union,  commun- 
ion, or  association.  The  great  ends  or  objects  of  society  are  two  in 
number,  and  must  be  carefully  defined. 

3.  Rights  and  Duties. — Men  have  rights  that  they  should  enjoy, 
and  duties  that  they  ought  to  perform.  They  are  entitled  to  life, 
liberty,  and  the  pursuit  of  happiness  so  long  as  they  properly  conduct 
themselves.  They  must  also  regard  the  lives,  liberty,  and  happiness 
of  their  fellows.  Securing  to  men  their  rights  and  compelling  them 
to  perform  their  duties,  together  constitute  the  maintenance  of  jus- 
tice. But  since  some  men,  left  to  themselves,  will  not  do  justice, 
there  must  be  in  society  some  authority  or  power  that  will  look  after 
the  matter  and  see  that  justice  is  done.  Accordingly,  justice  is  the 
first  duty  of  society.  As  Aristotle  says :  "  Justice  is  the  bond  of 
men  in  states,  arid  the  administration  of  justice,  which  is  the  deter- 
mination of  what  is  just,  is  the  principk  of  order  in  political  so- 
ciety." 

4.  Social  Progress. — The  well-being  of  society  —  particularly 
advanced  society  —  requires  a  great  many  things  to  be  done  that  are 
not  embraced  in  justice.    Roads  and  bridges  must  be  built  and  kept 

»I..  2.  15. 


THE  SCIENCE  OF  POLITICS.  ii 

in  order;  harbors  and  lighthouses  must  be  constructed;  letters  and 
newspapers  must  be  carried  from  place  to  place;  schools  and  educa- 
tion must  be  furnished;  the  arts,  sciences,  and  good  morals  must  be 
fostered.  Nor  can  these  things  be  provided  by  single  men,  or  by 
a  few  men  associated  together,  even  if  they  are  disposed  to  pro- 
vide them;  they  call  for  the  united  strength  of  the  community. 
Hence  the  promotion  of  its  own  progress  is  the  second  duty  of 
society. 

II.    Government. 

5.  The  Office  of  Government. — Government  is  the  instrument 
or  agent  which  society  uses  directly  to  secure  these  e^ds,  vis.,  justice 
and  progress.  On  the  one  side,  government  consists  of  customs, 
rules,  or  laws  commanding  what  society  wishes  to  have  done  and 
forbidding  what  it  does  not  wish  to  have  done ;  on  the  other,  it  con- 
sists of  rulers  or  officers  whose  business  it  is  to  have  these  rules 
or  laws  enforced.  It  is  easy  to  see  what  would  be  the  result  if  a 
society  were  without  government.  Not  only  would  progress  be  im- 
possible, but  society  could  not  exist.  First  would  come  anarchy,  or 
that  social  state  in  which  every  man  does  as  he  pleases,  and  then 
destruction.  Society  and  social  order  go  together.  Government  is 
a  universal  fact.  Man,  society,  and  government  are  always  found 
together;  these  are  the  broadest  terms  in  the  vocabulary  of  political 
science.  A  group  of  savages  eating  shell-fish  on  the  seashore  has 
no  written  laws,  no  legislature,  no  courts,  no  president;  but  it  has 
some  customs  that  take  the  place  of  laws,  and  a  head,  as  the  father 
of  the  family  or  the  chief  of  the  tribe,  who  sees  that  these  customs 
are  enforced.  Government  will  always  be  rude  and  simple  when 
society  is  rude  and  simple,  but  there  will  be  government.  Aristotle 
says :  "  Man  is  more  of  a  political  animal  than  bees  or  any  other 
gregarious  animals."  Govern  and  governpr  are  from  the  Latin 
gubernare  and  gubernator,  which  primarily  mean  to  steer  a  ship  and 
a  pilot  or  steersman. 

6.  Government  Coercive. — Government  then  is  coercive  by  its 
very  nature.  Its  first  duty  is  to  compel  obedience  to  its  mandates. 
A  government  that  is  not  obeyed  is  no  government  at  all.  This 
coercive  power  comes  from  society ;  whenever  it  is  necessary  gov- 
ernment has  the  right,  and  is  in  duty  bound,  to  summon  to  its  aid 
all  the  pov,  ers  that  society  possesses  to  secure  its  ends.  This  it  does 
in  the  name  of  society  and  for  its  defense. 

7.  Politics  Defined. — Politics,  or  Political  Science,  relates  to 
the  principles  of  government.  It  is  the  same  thing  as  the  science  of 
government.  It  is  also  the  same  thing  as  political  philosophy, 
unless   indeed  we  conceive  of  political  philosophy  as  dealing  with 


12  THE  AMERICAN  GOVERNMENT. 

the  more  speculative  and  theoretical  aspect  of  politics.  In  its 
broadest  scope,  this  science  is  a  view  of  society  considered  under  its 
governmental  aspects.  Sir  Frederick  Pollock  says  its  field  comes 
into  view  when,  passing  by  such  related  sciences  as  political  econ- 
omy and  ethics,  "  we  come  to  consider  man,  not  only  as  a  member 
of  society,  but  as  a  member  of  some  particular  society,  organized  in 
a  particular  way,  and  exercising  supreme  authority  over  its  mem- 
bers ;  in  other  words,  wheji  we  consider  man  as  a  citizen,  and  the 
citizen  in  his  relations  to  the  state."  He  mentions  as  the  natural 
heads  of  this  science,  "  the  foundation  and  general  constitution  of 
the  state,"  "  the  form  and  administration  of  government,"  "  the  prin- 
ciples and  method  of  legislation,"  and  the  "  state  as  a  single  and 
complete  unit  of  a  high  order,  capable  of  definite  relations  to  other 
like  units."  ^ 

The  present  treatise  will  not  deal  with  the  science  of  politics  as 
thus  outlined.  It  is  not  a  general  contribution  to  political  philos- 
ophy. It  deals  with  a  specific  and  concrete  theme  rather  than  with 
a  general  and  abstract  one.  Nevertheless,  it  will  conduce  to  clear- 
ness and  strength  of  treatment  to  devote  the  preliminary  pages  to 
defining  the  leading  terms  of  the  science. 

III.    The  State  and  the  Nation. 

8.  The  State. — Mr.  Wheaton,  following  Cicero  and  most  mod- 
em jurists,  defines  a  state  as  a  "body  politic,  or  society  of  men 
united  together  for  the  purpose  of  promoting  their  mutual  advan- 
tage by  their  combined  strength."*  Professor  Burgess  says  it  is 
"a  particular  portion  of  mankind  viewed  as  an  organized  unit"* 
Such  a  society  occupies  its  own  territory  and  is  called  sovereign. 
Mr.  Wheaton  remarks  that  this  definition  excludes  all  corporations, 
both  public  and  private,  that  the  state  itself  creates,  such  as  the 
London  and  Plymouth "  Companies,  to  be  mentioned  hereafter.  It 
excludes  all  voluntary  associations  of  robbers  and.  pirates,  and  all 
hordes  of  wandering  savages  not  yet  formed  into  a  settled  society. 
The  definition  also  excludes  the  States  of  the  American  Union,  be- 
cause they  are  not  sovereigns  in  the  sense  of  international  law. 
The  United  States,  France,  Germany,  and  Russia  are  states  in  that 
sense. 

9.  The  Nation. — By  its  etymology  the  term  nation  belongs  to 
the  science  of  ethnology  rather  than  to  the  science  of  politics.  It 
comes  from  the  Latin  verb  nascor,  to  be  born,  and  has  primary  refer- 

«Page  8. 

•Part  I.,  Chap.   II. 

•Vol.   I.,   p.    so. 


THE  SCIENCE  OF  POLITICS.  13 

ence  to  birth  or  race  kinship.  In  this  view  a  nation  is  properly  one 
people,  having  a  common  ancestry  and  descent,  a  common  language, 
common  traditions,  manners,  civilization,  and  customs.  It  also  sug- 
gests a  common  home,  present  or  past,  from  which,  however,  por- 
tions of  the  nation,  or  even  the  whole  nation,  may  have  emigrated. 
But  nation  has  become  a  political  word,  and  this  we  may  call  its 
•  secondary  meaning.  In  this  sense  the  state  and  the  nation  are  the 
same  thing.  It  is  good  usage,  therefore,  to  call  the  Germans  or  the 
Poles  a  nation  although  they  are  found  in  a  number  of  states,  and 
to  call  the  Jews  or  the  Gypsies  a  nation,  although  scattered  over 
the  world;  and  it  is  equally  good  usage  to  say  that  the  British 
state,  the  Austrian  state,  or  the  Russian  state,  comprises  a  great 
number  of  nations.  This  is  the  ethnological  sense  of  the  word. 
It  is  equally  good  usage  to  call  the  three  states  just  mentioned, 
as  units,  nations.  This  is  the  political  sense  of  the  word,  and  in 
this  sense  it  will  generally  be  used  in  the  present  work.  In  Ger- 
many the  tendency  is  to  confine  nation  to  its  original  meaning; 
but  in  English-speaking  countries  the  secondary  meaning  is  too 
firmly  established  to  be  disturbed.  In  recent  times  there  has  been  a 
strong  tendency  to  make  nationality,  in  the  primal  sense,  or  race 
kinship,  the  basis  of  the  state.  Examples  are  seen  in  the  efforts  to 
realize  national  unity  met  with  in  the  history  of  Germany  and 
Italy  since  the  downfall  of  Napoleon,  and  also  in  the  Balkan  Penin- 
sula. There  is  still  another,  and  a  less  definite,  meaning  of  nation. 
Before  the  Declaration  of  Independence  the  Thirteen  Colonies  were 
not  uncommonly  called  a  nation,  but  never  a  state ;  and  the  Domin- 
ion of  Canada  might  be  so  called  to-day.  Here  the  bonds  of  unity 
appear  to  be  race  kinship  and  common  interests,  the  emphasis  being 
thrown  upon  the  latter  element. 

10.  The  State  and  the  Government. — It  is  important  to  observe 
that  the  state  is  one  thing,  the  government  quite  another.  The  state 
is  the  corporate  people;  the  government,  a  system  of  agents  and 
powers  that  the  people  have  either  organized,  or  permitted  to  be  or- 
ganized, to  carry  on  the  public  functions  of  society.  Therefore, 
government  is  not  an  end  but  a  means.  This  doctrine,  which  was 
explicitly  taught  by  Aristotle,  has  not  been  better  stated  than  by 
Dante : 

"  And  the  aim  of  such  rightful  commonwealths  is  liberty,  to  wit, 
that  men  may  live  for  their  own  sake.  For  citizens  are  not  for  the 
sake  of  the  consuls,  nor  a  nation  for  the  king;  but  contrariwise 
the  consuls  are  for  the  sake  of  the  citizens,  the  king  for  the  sake  of 
the  nation.  For  as  a  commonwealth  is  not  subordinate  to  laws,  but 
laws  to  the  commonwealth ;  so  men  who  live  according  to  the  law 
are  not  for  the  service  of  the  lawgiver,  but  he  for  theirs;  which  is 


14  THE  AMERICAN  GOVERNMENT. 

the  philosopher's  [Plato's]  opinion  in  that  which  he  hath  left  us  con- 
cerning the  present  matter.  Hence  it  is  plain  also  that  though  a 
consul  or  king  in  regard  of  means  be  the  lords  of  others,  yet  in  re- 
gard of  the  end  they  are  the  servants  of  others ;  and  most  of  all,  the 
monarch,  who,  without  doubt,  is  to  be  deemed  the  servant  of  all." ' 

11.  Sovereignty. — In  defining  the  state  the  much-used  word 
sovereignty  has  been  employed.  In  every  independent  society,  such 
as  a  state,  there  must  be  some  authority  from  which  the  whole  law 
and  administration  ultimately  proceed.  This  authority  is  sov- 
ereignty, and  the  person  or  persons  who  wield  it  are  called  the  sov- 
ereign or  sovereigns.  The  following  particulars  are  essential  to  a 
full  understanding  of  the  subject:  . 

1.  Sovereignty  is  unlimited  power  over  the  individual  member 
of  the  state  and  all  associations  of  members.  This  is  sometimes 
denied  as  savoring  of  despotism.  The  difficulty  lies  in  the  fact  that 
men  do  not  carefully  distinguish  between  the  state  and  the  govern- 
ment. For  example,  the  people  of  the  United  States,  in  their  con- 
stitutions, have  delegated  certain  powers  to  their  governments,  Na- 
tional and  State ;  their  governments  are,  therefore,  relative  and  lim- 
ited governments.  But,  plainly,  the  power  of  the  people  of  the 
United  States  to  change  these  governments  to  please  themselves 
is  absolute  and  unlimited.  The  discussion  of  this  topic  will  be  re- 
newed when  we  come  to  discuss  the  relations  of  the  American  States 
to  the  Union. 

2.  As  sovereignty  makes  the  law,  it  is  necessarily  superior  to 
it  and  cannot  be  bound  by  it.  It  is  not,  however,  higher  than  duty 
or  moral  obligation. 

3.  In  the  absolute  sense,  sovereignty  cannot  be  divided ;  the 
very  supposition  implies  two  highest,  or  sovereign,  authorities  in  the 
state,  which  is  impossible.  Still,  the  sovereign  authority  may  dele- 
gate certain  powers  to  one  government  and  certain  other  powers  to 
another,  as  is  done  in  the  United  States ;  but  this  is  not  dividing  the 
ultimate  supreme  power  which  resides  in  the  people. 

4.  Sovereignty  may  vest  in  one  person,  in  the  few,  or  in  the 
many,  according  to  the  nature  of  the  state.  In  a  democratic  state, 
like  the  United  States,  it  is  vested  in  the  many — that  is,  in  the  peo- 
ple or  the  nation. 

IV.    Theories  of  the  State. 

12.  Historical  Theory. — The  true  account  of  the  origin  of 
the  state  is  that  given  by  Aristotle,  which  may  be  thus  summarized : 
Man  cannot  exist  in  solitude;  the  union  of  the  two  sexes  is  neces- 

*  Quoted  by  Pollock,  pp.  37,  38. 


THE  SCIENCE  OF  POLITICS.  15 

sary  for  the  perpetuation  of  the  race,  and  to  its  proper  direction  and 
guidance.  The  relations  of  husband  and  wife,  parent  and  child, 
master  and  servant,  determine  the  household  or  family.  Families 
coming  together  form  the  village  or  tribe,  and  a  union  of  tribes,  or 
the  expansion  of  the  single  tribe,  forms  the  state.  The  units  of  the 
family  are  individuals,  the  units  of  the  tribe  are  families,  the  units  of 
the  state  are  tribes  or  villages.  The  family  is  the  first  step,  the  tribe 
the  second  step,  and  the  state  the  last  step  in  social  development. 
Man  becomes  perfect  only  in  the  state.  The  state  is  not  the  result 
of  agreement,  contract,  or  convention  among  men;  it  is  an  organic 
development,  and  so,  perfectly  natural.  It  is  imposed  on  man  by  the 
conditions  of  his  highest  life;  it  is  the  only  condition  in  which  he 
can  achieve  all  that  he  is  capable  of  achieving.  Hence  the  maxim, 
"  Man  is  born  to  be  a  citizen."  The  state  differs  from  the  family 
and  the  tribe,  therefore,  in  the  number  of  its  members,  and  in  the 
number  and  nature  of  their  relations. 

13.  Patriarchal  Societies. — Family  and  tribal  societies  are  called 
patriarchal  societies,  their  governments  patriarchal  governments. 
Such  societies  well  illustrate  a  certain  stage  in  the  development  of 
the  state,  or  of  civil  society.  The  first  two  syllables  of  the  word 
patriarchal  mean  father,  the  second  two  government ;  so  that,  in  the 
original  sense,  patriarchal  government  is  government  by  a  father.  It 
is  applied  to  tribes  as  well  as  families,  because  the  original  rulers  of 
the  tribe  were  the  fathers  of  the  oldest  family.  It  is  a  form  of  gov- 
ernment well  adapted  to  the  purposes  of  the  tribe,  but  will  not 
answer  the  purposes  of  a  large  and  progressive  society.  Accord- 
ingly, we  find  patriarchal  government  in  the  savage  or  half-civilized 
states  of  society,  although  not  to  the  exclusion  of  other  forms  in 
the  half-civilized  state,  but  we  never  find  it  in  civilized  societies. 
They  have  outgrown  it.  But  human  society,  at  some  stage  of  its 
progress,  universally  presents  this  type  of  social  organization.  We 
have  an  excellent  example  of  a  patriarchal  ruler  in  Abraham,  and  of 
the  development  of  a  patriarchal  tribe  into  a  nation  and  a  state  in 
his  descendants,  as  narrated  in  the  Book  of  Genesis.  The  same  his- 
tory is  also  a  good  example  of  the  manner  in  which  early  states  were 
formed. 

14.  Theory  of  Contract — Once  it  was  the  fashion  to  say 
that  the  state  is  an  artificial  product  or  mechanism.  Those  who  held 
this  doctrine  reasoned  that  at  first  there  was  no  society  or  govern- 
ment. Men  lived  in  a  free,  natural  condition,  every  one  doing  what 
he  pleased.  In  this  condition  they  enjoyed  a  great  many  rights  and 
privileges  that  they  could  not  enjoy  when  they  came  to  live  together 
in  society.  For  example,  men  living  alone  in  the  forest,  or  in  small 
numbers,  could  safely  do  a  great  many  things  that  they  could  not  do 


l6  THE  AMERICAN  GOVERNMENT. 

living  in  a  town  or  city.  But  living  in  this  way,  men  suffered  the 
want  of  those  advantages  that  spring  out  of  society  and  government. 
Hence,  they  agreed  to  enter  into  society,  and  to  constitute  govern- 
ment. According  to  this  agreement,  they  surrendered  those  natural 
rights  that  would  bring  them  into  conflict  with  one  another,  they 
established  certain  rules  of  conduct,  and  appointed  officers  to  enforce 
these  rules.  The  most  celebrated  defense  of  this  theory  is  Rous- 
seau's Social  Contract} 

15.  Refutation  of  this  Theory. — The  truth  is,  no  such  contract 
as  this  was  ever  entered  into  by  men,  either  directly  or  indirectly. 
Men  live  together  just  as  naturally  as  birds  pair  and  gather  into 
flocks,  or  as  bees  live  in  swarms ;  and  government  is  a  natural  and 
necessary  outgrowth  of  this  condition.  Thus,  society  and  govern- 
ment, although  very  simple  at  first,  have  existed  from  the  time  that 
the  first  man  and  the  first  woman  formed  the  first  family.  The  first 
child  was  born  into  a  community  already  existing,  and  he  became 
subject  to  an  authority  that  he  had  had  no  part  in  creating  or  admin- 
istering. And  so  it  is  now ;  children  are  born  into  society,  and  are 
subject  to  government  from  the  time  that  they  draw  their  first 
breath.  As  they  grow  up,  they  continue  members  of  society ;  they 
may  or  they  may  not  assist  in  carrying  on  the  government;  but  they 
never  have  anything  to  do  with  creating  the  society  into  which 
they  are  born,  or  with  originating  its  government.  No  man  is  ever 
invited  to  enter  society ;  no  man  ever  enters  it  of  his  own  accord ;  no 
man  is  ever  asked  whether  he  will  become  a  subject  of  government; 
no  man  ever  becomes  such  of  his  own  choice.  A  man  may  choose  to 
live  in  this  society  rather  than  in  that  one,  or  to  be  subject  to  one 
government  rather  than  to  another ;  but  he  must  live  in  some  society, 
and  so  be  under  some  government,  unless,  indeed,  he  become  a  her- 
mit. Hence  the  rule,  that  a  man  is  bound  to  render  obedience  to  the 
government  under  which  he  lives. 

But  still  more,  men  could  not  come  together  and  frame  a  social 
compact  unless  society,  government,  and  the  state  already  existed. 
Compacts  in  plenty  are  found  in  political  history,  but  they  belong  to 
a  considerably  advanced  stage  of  social  and  political  progress,  and 
never  to  its  beginning.  Thus,  compact  assumes  the  very  fact  that  it 
seeks  to  explain. 

16.  Theological  Theory. — The  theological  theory  regards  the 
state  as  the  immediate  workmanship  of  God.  The  New  Testament 
says  government  is  an  ordinance  of  God,  and  makes  it  a  divine 
institution.  But  this  language  cannot  mean  that  the  Divine  Being 
directly  created  the  particular  governments  that  now  exist,  or  that 

*  See  Pollock,  pp.  65-92. 


THE  SCIENCE  OF  POLITICS.  Vj 

have  existed.  Government  is  divine  in  the  sense  that  marriage,  the 
family,  children,  society,  and  the  state  are  divine ;  it  is  a  necessary 
condition  of  the  existence  of  the  human  race.  God  ordained  society, 
government,  and  the  state  when  He  gave  man  his  social  nature. 

V.    Kinds  of  Government. 

17.  Aristotle's  Dii^ision  of  Governments. — Apparently  the  first 
scientific  division  of  goverjiments  was  that  made  by  Aristotle,  into 
the  monarchy,  the  democracy,  and  the  aristocracy.  This  division 
has  been  much  criticised  but  generally  followed ;  its  general  accept- 
ance attests  its  excellence.  Plainly,  the  three  names  all  have  refer- 
ence to  the  vesting  of  authority  or  to  sovereignty;  in  other  words, 
they  simply  tell  us  who  holds  political  power,  but  tell  us  nothing  as 
to  the  nature  of  governments  as  determined  by  the  ends  to  which 
they  are  directed,  that  is,  whether  they  are  good  or  bad.  The  fact  is, 
governments  may  be  divided  in  several  ways  that  throw  light  on 
their  nature,  according  as  we  adopt  different  ideas  or  standpoints  for 
our  division.     Aristotle's  division  is,  the  One,  the  Many,  the  Few. 

18.  Monarchyj — Monarchy  is  government  by  one  man,  or  a 
monarch.  A  large  number  of  persons  may  be  employed  in  carrying 
on  the  government,  but  they  do  so  in  the  name  and  by  the  authority 
of  the  monarch.  Monarchical  governments  are  more  numerous  in 
history  than  all  other  governments  put  together.  It  is  common  to 
divide  them  into  limited  and  unlimited  monarchies,  according  as  the 
power  of  the  monarch  is  or  is  not  limited  by  a  constitution.  As  a 
matter  of  fact,  every  monarch  i§  limited  by  the  national  genius  and 
by  popular  feeling. 

19.  Democracy. — Democracy  is  government  by  the  many,  or 
the  people.  The  people,  or  so  many  as  participate  in  public  affairs, 
come  together  at  one  place  to  enact  laws,  to  settle  questions  of 
public  policy,  and  to  choose  officers  to  carry  out  their  will.  Athens 
was  a  democracy  in  ancient  times,  and  so  was  the  Plymouth  Colony 
for  a  brief  period  in  modern  times.  But  such  a  government  is 
adapted  only  to  small  societies  and  to  narrow  territories.  The 
Athenians  could  meet  in  Athens  to  pass  upon  public  questions,  and 
the  Pilgrims  in  Plymouth  for  the  same  purpose;  but  the  English 
could  not  in  this  way  govern  the  British  Empire  from  London,  or 
the  Americans  America  from  Washington.  This  is  one  of  the 
reasons  why  pure  democracies  have  been  few  in  number. 

20.  Aristocracy. — In  an  aristocracy,  power  is  not  intrusted  to 
one,  as  in  a  monarchy,  or  to  the  many,  as  in  a  democracy,  but  is 
confined  to  a  few  persons  of  superior  birth  and  position.  Pure  aris- 
tocracies have  been  few.  Venice  had  such  a  government.  The 
word  aristocracy  means  government  by  the  best  or  the  few. 


l8  THE  AMERICAN  GOVERNMENT. 

21.  Mixed  Governments. — Many  governments  contain  a  variety 
of  elements,  and  so  are  really  mixed  governments.  England  is  a 
good  example.  The  monarch  reigns  by  hereditary  right;  the  House 
of  Lords,  consisting  of  the  heads  of  the  great  families,  is  an  heredi- 
tary aristocratic  body;  while  the  House  of  Commons,  which  is  the 
most  powerful  factor,  is  chosen  by  the  people  and  is  a  republican 
body.    The  same  is  true  in  a  less  degree  of  Germany. 

22.  Immediate  and  Representative  Governments. — Govern- 
ments may  be  divided  with  reference  to  the  identity  or  non-identity 
of  the  government  with  the  sovereign  power.  If  the  two  are  iden- 
tical, the  government  is  immediate  or  direct;  if  they  are  not  iden- 
tical, the  government  is  representative  or  indirect.  Evidently,  im- 
mediate government  is  the  simpler  and  the  more  readily  understood 
of  the  two. 

23.  Representative  Government. — The  principle  of  political 
representation  was  practically  unknown  to  the  ancient  world.  Says 
Mr.  Fiske :  "  No  statesman  of  antiquity,  either  in  Greece  or  at 
Rome,  seems  to  have  conceived  the  idea  of  a  city  sending  delegates 
armed  with  plenary  powers  to  represent  its  interests  in  a  general 
legislative  assembly.  ...  In  an  aristocratic  Greek  city,  like 
Sparta,  all  the  members  of  the  ruling  class  met  together  and  voted 
in  the  assembly;  in  a  democratic  city,  like  Athens,  all  the  free  citi- 
zens met  and  voted ;  in  each  case  the  assembly  was  primary  and  not 
representative." '  The  German  mind  is  entitled  to  the  credit  of  in- 
venting representative  government,  to  which  political  progress  in 
modern  times  is  more  largely  due  than  to  all  other  political  causes 
put  together. 

24.  The  Republic. — The  people  of  a  republic  govern  themselves 
by  means  of  chosen  men  whom  they  call  representatives.  Republi- 
canism is  government  by  the  people  in  an  indirect  sense,  and  is 
sometimes  called  democratic.  President  Lincoln  called  it  "  Govern- 
ment of  the  people,  by  the  people,  and  for  the  people."  The  United 
States  is  a  democratic  republic.  The  word  means  the  public  weal, 
the  commonwealth.  In  antiquity  and  the  middle  ages,  a  republic 
was  a  government  of  any  kind  without  an  hereditary  monarch  at  its 
head.  The  so-called  republics  and  democracies  of  antiquity  and  the 
middle  ages  were  not  such  according  to  modern  ideas.  To  quote 
Sir  F.  Pollock:  "After  all,  the  citizens  for  whose  welfare  Aristotle 
conceived  the  state  to  exist  were,  even  in  the  most  democratic  of 
constitutions,  a  limited  and  privileged  class.  They  are  people  of 
leisure  and  culture,  not  living  by  the  work  of  their  hands.  To  make 
a  true  citizen  of  the  worker  in  mechanical  arts,  the  handicraftsman 
who  has  not  leisure,  is  thought  by  Aristotle  a  hopeless  task,  and 

*  Pages  59,  71. 


THE  SCIENCE  OF  POLITICS.  19 

this  even  with  reference  to  the  skilled  and  finer  kinds  of  work. 
The  grosser  kind  of  labor  is  assumed  to  be  done  by  slaves,  who  are 
wholly  outside  the  sphere  of  political  right.  Not  that  Aristotle 
would  neglect  the  welfare  of  inferior  freemen  or  even  of  slaves. 
He  would  have  the  statesman  make  them  comfortable,  and  bring 
them  as  near  happiness  as  their  condition  admits.  But  of  happiness 
in  the  true  sense  they  are  incapable."' 

25.  Centralized  and  Dual  Governments. — Another  principle 
of  division  of  governments  has  reference  to  the  consolidation  or  dis- 
tribution of  political  powers.  In  centralized  governments,  authority 
is  lodged  in  a  single  organization,  as  in  England  and  France.  Local 
government  may  exist,  but  only  as  the  creature  of  the  central  gov- 
ernment, by  which  it  can  be  changed  or  set  aside.  In  dual  govern- 
ments, the  state  delegates  certain  powers  to  one  organization  and 
certain  other  powers  to  a  second  one.  The  two  may  be  strictly 
coordinate,  and  so  independent  in  their  different  spheres ;  or  one 
may  be  dependent  upon  the  other;  or,  if  they  are  independent,  one 
may  employ  the  other  as  an  agency. 

26.  Forms  of  Dual  Government. — Writers  differ  in  the  number 
of  forms  of  dual  government  that  they  recognize.  Only  two  call 
for  mention  in  this  place,  viz. :  confederate  government  and 
federal  government;  or,  as  the  Germans  call  them,  the  Statenbund 
and  the  Bundesstaat.  Both  of  these  forms  are  illustrated  by  the 
United  States  at  different  periods  of  their  history,  as  we  shall  see 
hereafter. 

A  confederate  government  is  the  creation  of  the  several  local  gov- 
ernments or  states,  rather  than  of  the  nation;  it  represents  those 
governments  and  not  the  people ;  and  it  acts  upon  them  and  through 
them,  and  not  upon  the  nation  directly.  For  example,  if  it  needs 
money  to  fill  its  treasury  or  men  to  recruit  its  army,  it  calls  upon  the 
states  for  the  needed  supplies  and  the  states  respond  in  their  own 
way.  Sovereignty  resides  in  the  states,  and  not  in  the  one  people. 
A  federal  government,  on  the  other  hand,  is  the  creation  of  the  na- 
tion ;  it  acts  directly  upon  the  people  and  not  indirectly  through  the 
states ;  it  employs  its  own  agencies  and  not  those  of  the  states,  and 
it  IS  commonly  much  better  developed  in  all  respects.  While  a  leg- 
islative council  or  congress  may  serve  the  purposes  of  a  confederacy, 
only  a  fully  differentiated  system — legislative,  executive,  and  judi- 
cial branches — will  serve  the  purposes  of  an  efficient  federal  state. 
Plainly,  sovereignty  is  here  vested  in  the  one  people  or  nation.  Our 
study  of  the  American  Government  will  give  us  the  best  oppor- 
tunity that  history  affords  to  illustrate  these  two  forms  of  political  • 
dualism. 

*Page  38. 


20  THE  AMERICAN  GOVERNMENT. 

37.  Federal  Government. — The  relations  of  the  local  and  gen- 
eral governments  in  a  federal  state  may  be  thus  summarized: 

On  the  one  hand,  each  member  of  the  union  is  wholly  independent 
in  those  matters  which  concern  itself  only ;  on  the  other  hand,  all 
members  are  subject  to  a  common  authority  in  those  matters  which 
concern  the  whole  body  collectively.  Thus,  each  member  fixes  for 
itself  its  laws,  and  even  the  details  of  its  political*  constitution,  not 
as  a  matter  of  privilege  or  concession,  but  as  a  matter  of  right,  as 
an  independent  commonwealth ;  while  in  all  matters  concerning  the 
general  body,  the  several  members,  have  no  power  whatever.  Each 
member  is  perfectly  independent  within  the  local  sphere ;  but  in  the 
national  sphere  its  independence,  or  rather  its  separate  existence, 
vanishes.  It  is  invested  with  every  right  and  power  on  one  class  of 
subjects;  on  another  class,  it  is  as  incapable  of  separate  political 
action  as  any  province  or  city  of  a  monarchy  or  of  a  unitary  repub- 
lic. Peace  and  war,  and,  generally,  all  that  comes  within  the  sphere 
of  international  law,  is  reserved  wholly  to  the  central  power ;  for- 
eign nations  know  nothing  of  the  states,  and  deal  only  with  the 
general  government.  A  federal  union  forms  one  state  or  power  in 
relation  to  other  powers,  but  many  states  in  relation  to  internal  ad- 
ministration.^ 

28.  The  Advantages  of  Centralized  and  Dual  Governments. — 
Each  of  these  governmental  forms  has  its  own  peculiar  advantages, 
A  centralized  or  unitary  government  secures  greater  internal  peace, 
and  diminishes  faction,  party  strife,  and  local  prejudice,  as  well  as 
enhances  immunity  from  the  evils  of  war,  both  domestic  and  foreign. 
A  federal  government  secures  greater  local  freedom,  more  intense 
patriotism,  and  higher  political  education.  We  Americans  claim 
that  our  federal  system  measurably  secures  the  peculiar  advantages 
that  have  been  claimed  for  large  and  small  states, — local  autonomy 
and  national  power.  We  hold  that  in  an  extended  empire,  like  our 
own,  local  independence  is  as  essential  to  freedom  as  centralized 
power  is  to  peace  and  security. 

29.  Civil  Government. — The  word  civil  is  used  in  a  variety  of 
senses.  Sometimes  it  is  used  in  a  sense  so  broad  as  to  make  civil 
government  and  government  the  same  thing.  But  the  word  is 
derived  from  the  Latin  civis,  meaning  citizen,  which  again  is  related 
to  civitas,  meaning  state ;  and  we  commonly  limit  it  to  those  more 
advanced  social  conditions  in  which  proper  states  are  found.  Rov- 
ing savages  are  not  citizens,  because  they  do  not  constitute  a  state. 
In  the  proper  sense,  civil  society  and  civilized  society  are  the  same 
thing.  Civil  government  is  the  government  of  the  state,  and  is  co- 
extensive with  civil  society.     It  is  a  government  of  regular  and  set- 

•  See  Freeman,  History  of  Federal  Government,  Chap.  I.    • 


THE  SCIENCE  OF  POLITICS.  21 

tied  order.  In  the  best  sense,  it  is  a  government  of  laws  resting 
upon  intelligence  and  moral  force.  It  is  discriminated  from  military 
government,  which  is  government  by  the  army,  and  also  from  the 
government  of  savage  tribes. 

30.  Civil  and  Political  Rights^ — Definitions  of  rights  are  both 
numerous  and  conflicting.  The  ideas  that  the  term  conveys  change 
with  intellectual,  social,  and  political  conditions.  A  Chinese  can- 
not understand  it  as  the  Greek  understood  it;  nor  do  men  living 
under  absolute  governments,  as  Russia,  know  what  it  means  to  the 
people  of  the  United  States.  A  general  discussion  of  the  subject  is 
not  here  called  for,  but  two  species  of  rights  that  are  often  con- 
founded must  be  carefully  discriminated. 

The  use  of  the  common  highways,  the  protection  of  person  and 
property,  the  pursuit  of  whatever  tradf  or  calling  one  sees  fit  to 
follow,  are  civjl  rights.  Participation  in  the  government,  as  in  vot- 
ing and  holding  office,  are  political  rights.  The  civil  rights,  and 
still  more  the  political  rights,  enjoyed  by  men  differ  greatly  in  dif- 
ferent countries.  As  a  rule,  the  freer  the  government  the  larger  the 
measure  of  rights  possessed  by  the  citizen  or  the  subject.  These 
two  classes  of  rights  are  by  no  means  accorded  to  men  in  the  same 
country  in  equal  measure.  The  citizen  may  enjoy  full  civil  rights 
and  have  no  political  rights  whatever;  or  he  may  enjoy  full  political 
rights  while  his  civil  rights  are  not  well  protected.  That  is,  his 
rjghts  of  person  and  property  may  be  protected,  while  he  is  denied 
all  participation  in  the  government;  or  he  may  participate  freely  in 
the  government,  while  not  enjoying  civil  protection.  Civil  and  polit- 
ical rights  are  defined  and  protected  by  law  in  all  well-ordered  states. 

31.  Civil  and  Political  Liberty. — Strictly  speaking,  civil  liberty 
pertains  to  the  enjoyment  of  civil  rights;  political  liberty,  to  partici- 
pation in  politics  or  the  affairs  of  government.  Some  writers  blend 
them  in  one  whole.  Dr.  Lieber  says  that  "  when  the  term  civil  lib- 
erty is  used  there  is  now  always  meant  a  high  degree  of  mutually 
guaranteed  protection  against  interference  with  interests  and  rights 
held  dear  and  important  by  all  classes  of  civilized  men,"  and  also 
"  an  effectual  share  in  the  making  and  administration  of  the  laws  as 
the  best  apparatus  to  secure  that  protection."*  In  other  words, 
Dr.  Lieber  holds  that  political  liberty  is  essential  to  civil  liberty, 
and  that  practically  the  two  kinds  of  rights  cannot  be  separated. 

VI.    Constitutions. 

33.  Kinds  of  Constitutions. — Theoretical  writers  recognize  two 
or  more  kinds  of  constitutions.  Dr.  Brownson  calls  one  kind  "  con- 
stitutions of  the  people,"  another  kind   "  constitutions  of  the  gov- 

*  Page  89. 


22  THE  AMERICAN  GOVERNMENT. 

ernmcnt."  Judge  Jameson  calls  them  "constitutions  as  objective 
facts "  and  "  constitutions  as  instruments  of  evidence."  This  dis- 
tinction further  illustrates  the  differerice  between  society  and  gov- 
ernment, the  state  and  the  political  system.  Constitutions  "  as  they 
ought  to  be "  are  ideal  constructions,  like  Plato's  Republic  and 
More's  Utopia. 

33.  The  Constitution  of  the  People. — Jameson  calls  the  con- 
stitution of  the  people  "  its  make-up  as  a  political  organism ;  that 
special  adjustment  of  instrumentalities,  powers,  and  functions,  by 
which  its  form  and  operation  are  determined."  This  constitution  is 
a  part  of  the  political  character  and  life  of  the  people.  It  is  the  con- 
stitution actually  existing  and  working  at  any  given  time.  It  is 
never  summed  up  in  a  document.  It  grows  up  with  the  state,  and  is 
not  made  or  ordained.     It  changes  as  the  people  change. 

34.  The  Constitution  of  the  Government. — Dr.  Brownson  de- 
fines the  constitution  of  the  government  as  "  simply  a  law  ordained 
by  the  nation  or  people,  instituting  and  organizing  their  govern- 
ment." Jameson  says  it  is  "  tlie  result  of  an  attempt  to  represent  in 
technical  language  some  particular  constitution  existing  as  an  ob- 
jective fact."^  Commonly  this  secondary  constitution  is  in  general 
accord  with  the  primary  one,  but  it  always  varies  from  it  more  or 
less  widely.  The  constitution  of  the  people  of  the  United  States 
says  that  the  President  and  Vice  President  are  elected  by  the  people 
voting  by  States ;  the  constitution  of  the  government  says  they  are 
elected  by  electors  appointed  as  the  several  State  legislatures  may 
direct.  Our  caucus  system  is  a  part  of  the  one,  but  not  a  part  of  the 
other. 

35.  Constitutional  Governments. — Every  nation  has  a  constitu- 
tion considered  as  an  objective  fact,  or  a  constitution  of  the  people. 
But  only  those  governments  are  called  constitutional  that  are  insti- 
tuted and  organized  by  some  rules  or  statutes  of  binding  force 
called  constitutions.  These  constitutions  may,  in  whole  or  in  part, 
be  the  immediate  concessions  or  grants  of  a  king,  as  Magna  Charta 
was,  but  this  is  rarely  the  case  unless  they  are  sternly  demanded  by 
the  state.  The  object  of  constitutions  is  to  institute  political  power, 
and  to  define  and  limit  its  extent.  Constitutions  are  of  two  kinds, 
written  and  unwritten. 

36.  Written  Constitutions.-^The  main  difference  between  such 
a  constitution  and  an  ordinary  law  is  that  a  constitution  is  ordained 
by  the  state,  or  sovereign  power,  for  the  purpose  of  instituting  the 
government,  defining  its  powers  and  directing  by  whom  they  shall 
be  exercised ;  while  a  law  is  enacted  by  the  law-making  power  that 
the  constitution  has  instituted,  as  a  congress  or  a  legislature.     Such 

*  Chap.   Ill, 


THE  SCIENCE  OF  POLITICS.  23 

a  constitution  is  also  called  an  organic  act  and  the  fundamental 
law.  It  is  therefore  a  much  more  significant  and  solemn  act  than  a 
common  statute.  A  written  constitution  may  be  composed  of  old 
materials,  and  will  be  so  to  a  large  extent  if  it  is  a  good  one;  but  it 
is  always  a  definite  act  or  transaction,  an  attempt  to  formulate  the 
organic  law.     It  is  always  a  document,  lex  scripta. 

37.  Unwritten  Constitutions. — Unwritten  constitutions  grow 
up  gradually,  springing  out  of  the  life  of  the  state.  They  consist  of 
custojjis,  precedents,  traditions,  grants  of  rights  by  the  executive 
authority,  rules  of  proceeding  by  the  legislature,  and  decisions  by 
the  courts  of  law.  Such  constitutions  are  never  found  in  a  formal 
document,  and  so  are  called  unwritten,  lex  non  scripta.  They  are 
sometimes  called  prescriptive,  historical,  and  traditionary  constitu- 
tions. The  most  celebrated  constitution  of  this  kind  is  that  of 
England.  According  to  this  constitution,  sovereignty  resides,  pro 
forma,  in  Parliament,  which  enacts  such  laws  as  it  pleases,  and  may 
at  any  time  change  the  constitution  itself,  even  to  the  extent  of  abol- 
ishing the  Crown.  This  constitution  consists  of  documents  and 
precedents  which  are  found  in  books  of  law  and  history. 

38.  Advantages  of  the  Two  Kinds  of  Constitutions. — Each  kind 
has  its  own  points  of  advantage  and  disadvantage.  Unwritten  con- 
stitutions are  more  elastic,  more  rapidly  changed,  and  they  more 
nearly  represent  the  constitution  of  the  people.  Written  constitu- 
tions are  more  definite,  are  less  open  to  dispute,  are  more  readily 
understood  and  followed.  They  are  bulwarks  against  faction  and 
violence,  and  against  abuses  of  power.  They  are  monuments  from 
which  we  may  measure  the  advance  or  recession  of  the  body  politic. 
An  unwritten  constitution  of  necessity  lodges  sovereignty  in  the 
government,  or  some  branch  of  it,  as  the  English  constitution  does 
in  Parliament;  while  a  written  constitution  always  assumes  that 
there  is  a  power  above  the  government — the  people,  or  the  nation — 
that  makes  and  changes  the  constitution  at  will.  The  question, 
Which  is  the  better  ?  must  be  answered  with  reference  to  the  history 
and  political  character  of  the  people  directly  interested  in  a  particu- 
lar case. 

VII.    Modes  of  Improving  Government, 

39.  Evolution. — Some  governments  are  more  and  some  less  im- 
perfect, but  all  are  capable  of  improvement.  The  common  mode  of 
improving  them  is  through  public  opinion.  Interested  men  agitate 
reforms  in  newspapers,  books,  pamphlets,  sermons,  speeches,  and 
private  conversation,  until,  at  last,  public  sentiment  declares  itself 
satisfied  with  the  existing  state  of  affairs  or  compels  a  change.  This 
is  the  civilized  way  of  reforming  government,  and  in  free  countries 


24  THE  AMERICAN  GOVERNMENT. 

these  processes  are  all  the  time  going  on.  It  is  a  slow  but,  under 
favorable  circumstances,  an  effectual,  mode  of  accomplishing  the  end. 
40.  Revolution. — The  Declaration  of  Independence  describes 
another  mode  of  effecting  political  changes.  "  Whenever  any  form 
of  government  becomes  destructive  of  these  ends  [viz.,  the  securing 
of  rights]  it  is  the  right  of  the  people  to  alter  or  abolish  it,  and  to 
institute  new  government,  laying  its  foundation  on  such  principles, 
and  organizing  its  powers  in  such  form,  as  to  them  shall  seem  most 
likely  to  effect  their  safety  and  happiness."  This  is  called  the  right 
of  revolution.  It  is  an  extreme  and  violent  measure  even  when 
peaceful,  and  still  more  so  when  it  is  effected  by  war  and  bloodshed. 
Accordingly  the  Declaration  says :  "  Prudence,  indeed,  will  dictate 
that  governments  long  established  should  not  be  changed  for  light 
and  transient  causes.  .  .  .  But  when  a  long  train  of  abuses  and 
usurpations,  pursuing  invariably  the  same  object,  evinces  a  design  to 
reduce  them  [the  people]  under  absolute  despotism,  it  is  their  right, 
it  is  their  duty,  to  throw  off  such  government,  and  to  provide  new 
safeguards  for  their  future  security." 


PART  I.  , 

THE  MAKING   OF   THE   AMERICAN   GOVERNMENT. 


CHAPTER  I. 

THE  THIRTEEN  ENGLISH  COLONIES  PLANTED. 

References/ 

I.  General  Histories. — Bancroft,  History  of  the  U.  S.  (author's 
final  revision),  Part  I.;  Hildreth,  History  of  the  U.  S.,  Vol.  I.; 
Winsor,  Narrative  and  Critical  History  of  America,  Vol.  III.;  John- 
ston, The  United  States.  See  also  the  same  author's  articles  on  the 
Thirteen  Colonies,  by  names,  in  Lalor's  Cyclopedia  of  Political 
Science,  etc. 

II.  Special  Histories. — Doyle,  The  English  Colonies  in  Amer- 
ica, I.,  "  Virginia,  Maryland,  and  the  Carolinas  " ;  II.  and  III.,  "  The 
Puritan  Colonies  " ;  Lodge,  A  Short  History  of  the  English  Colonies 
in  America;  Fiske,  The  Beginnings  of  New  England;  Hinsdale,  The 
Old  Northwest,  Chaps.  VI.,  VII.,  and  How  to  Study  and  Teach 
History,  Chaps.  XV.-XVII. ;  Thwaites,  The  Colonies  (Epochs  of 
American  History).  See  also  the  volumes  on  Connecticut,  New 
York,  Maryland,  and  Virginia  in  the  American  Commonwealths 
series. 

III.  On  Right  of  Discovery. — Phillimore,  Commentaries  upon 
International  Law,  Part  III.,  Chap.  XII. ;  Wheaton,  Elements  of 
International  Law,  Part  II.,  Chap.  IV. ;  Wharton,  Digest  of  the  In- 
ternational Law  of  the  U.  S.,  Chap.  I.,  Sec.  2. 

IV.  Colonial  Charters  and  Patents. — These  are  nearly  all 
gfiven  by  Poore,  Federal  and  State  Constitutions,  Colonial  Charters, 
etc.,  and  several  of  the  principal  ones  by  Preston,  Documents  Illus- 
trative of  American  History. 


*  Titles  of  books  once  given  will  not  ordinarily  be  repeated  in  these  bibli- 
ographies, save  when  neccssnry  to  avoid  confusion.  A  bibliographical  index 
will  be  found  at  the  close  of  the  work. 

(2S) 


26  THE  AMERICAN  GOVERNMENT. 

41.  The  Right  of  Discovery. — Columbus  and  his 
successors  made  known  to  Europe  the  continent  of  North 
America.  These  vast  regions,  Spain,  England,  and  France 
divided  among  themselves.  The  Right  of  Discovery,  as 
the  rule  was  called  by  which  this  division  was  made,  em- 
braced, when  fully  developed,  these  ideas:  (i)  The  Chris- 
tian nation  that  discovers  a  heathen  land  owns  it  to  the 
exclusion  of  all  other  Christian  nations ;  (2)  This  nation, 
to  complete  its  title,  must,  within  a  reasonable  time,  occupy 
and  use  this  land;  (3)  The  native  inhabitants  are  only  the 
occupants  of  the  land  and  not  its  owners.  Lands  that  a 
Christian  power  thus  appropriated  were  vested  in  the  king 
as  its  representative.  This,  in  the  case  of  England,  it 
is  important  to  remember;  for  the  American  Revolution 
hinged  upon  the  fact. 

42.  First  Division  of  North  America. — In  the  years 
15 12- 1 540  Spanish  navigators  discovered  the  southern  parts 
of  the  United  States  bordering  on  the  Gulf  of  Mexico,  in- 
cluding Florida.  In  1497-98  John  Cabot,  a  Venetian  ad- 
venturer, who  had  made  his  home  some  time  before  at 
Bristol,  England,  sailing  with  a  commission  given  him  by 
Henry  VII.  of  that  country,  first  discovered  the  continent, 
and  sailed  along  its  eastern  shore  from  a  high  latitude  to 
Chesapeake  Bay.  In  1534,  1535,  and  1540,  Jacques  Cartier, 
a  French  navigator,  sailing  under  the  flag  of  the  King  of 
France,  discovered  the  Gulf  and  River  St.  Lawrence  and  the 
valley  that  these  waters  drain.  These  discoveries  gave 
Spain  the  southern,  England  the  central,  and  France  the 
northern  parts  of  North  America,  and  at  the  same  time  left 
many  disputes  as  to  claims  and  boundary  lines  to  be  after- 
wards settled  by  negotiation  and  the  sword.  The  three 
powers  proceeded  at  their  own  time  and  in  their  own  way  to 
found  colonies  in  their  new  dominions. 

43.  London  and  Plymouth  Companies. — England  was 
slow  to  begin  colonization,  and  even  then  her  first  efforts 
proved  disastrous  failures.  But  in  1606,  King  James  I.,  by 
one  charter,  created  the  London  and  Plymouth  Companies, 


THE  THIRTEEN  ENGLISH  COLONIES  PLANTED.     2^ 

and  divided  his  American  dominions  between  them.  To 
the  London  Company,  which  had  its  headquarters  in  Lon- 
don, he  assigned  the  zone  between  34°  and  41°  north  lati- 
tude, and  to  the  Plymouth  Company,  having  its  seat  in 
Plymouth,  the  zone  between  38°  and  45°.  Within  their 
respective  limits,  the  companies  were  authorized  to  es- 
tablish colonies  of  the  king's  subjects,  care  being  taken 
to  prevent  disputes  within  the  three-degree  strip  covered  by 
both  grants,  by  prohibiting  either  one  to  make  a  settlement 
within  one  hundred  miles  of  one  previously  made  by  the 
other.  Each  colony  was  to  be  subject  to  the  king,  and  to 
be  governed  by  a  local  council  of  its  company  in  England, 
at  the  king's  pleasure.  It  was  expected  in  1606  that  there 
would  be  but  two  colonies,  or  at  the  most  but  two  groups 
of  colonies,  but  this  expectation  failed,  and  in  the  end  thir- 
teen colonies,  divided  into  three  groups,  appeared.  The 
two  companies  were  short-lived,  and  yet  they  played  im- 
portant parts  in  American  history.  Other  companies  ap- 
peared on  the  scene,  but  none  so  prominently  as  these  two 
original  ones. 

44.  Colonies  Planted  by  Companies. — The  colonies  of 
Massachusetts,  New  York,  New  Jersey,  Virginia,  and  Geor- 
gia were  planted  by  mercantile  corporations  clothed  with 
political  powers.  Such  companies  played  a  great  part  in 
the  days  when  the  maritime  nations  of  Europe  were  estab- 
lishing themselves  in  America  and  in  the  other  countries 
discovered  by  the  navigators  of  the  fifteenth  and  sixteenth 
centuries.  The  stockholders  were  merchants,  politicians, 
adventurers,  courtiers,  patriots,  reformers,  and  philanthro- 
pists—  two  or  more  of  these  characters  often  appearing  in 
the  same  man.  Their  motives  are  sufficiently  suggested  by 
the  names  applied  to  them.  Few  of  the  stockholders  be- 
came colonists.  The  Massachusetts  Bay  Company  was  the 
only  one  that  was  merged  in  the  colony  that  it  planted. 

45.  Colonies  Planted  by  Proprietors. —  New  Hamp- 
shire, Pennsylvania,  Delaware,  Maryland,  and  the  two  Caro- 
linas,  were  planted  by  proprietors.     New  York  and  New 


28  THE  AMERICAN  GOVERNMENT. 

Jersey,  too,  although  planted  by  a  Dutch  company,  were  for 
a  time  following  1665  proprietary  colonies.  The  proprie- 
tors were  actuated  by  the  same  motives  as  the  stockholders 
of  the  companies,  and  more  or  less  by  personal  ambition 
into  the  bargain.  They  were  really  sub-kings  of  their  sev- 
eral provinces,  and  could  depute  their  powers  to  subordi- 
nates. They  commonly  remained  in  England,  committing 
their  executive  functions  to  governors,  but  they  occasion- 
ally came  to  America  and  governed  in  person  for  a  time. 

46.  Voluntary  Colonies. — Plymouth  (later  merged  with 
Massachusetts),  Connecticut,  and  Rhode  Island  were  not 
planted  by  companies  or  proprietors.  They  were  rather 
founded  by  groups  of  individuals,  not  bound  together  by 
charters  or  by  articles  of  incorporation,  but  only  by  moral 
bonds.  The  founders  and  the  colonists  were  the  same  per- 
sons. They  were  not  at  first  recognized  by  the  crown, 
much  less  supported,  and  Plymouth  never  obtained  such 
recognition.  In  no  other  colonies  were  cherished  civil  and 
religious  ideas  so  powerful  a  motive  as  in  these. 

47.  Agency  of  the  Home  Government. — The  agency  of 
the  home  government  was  limited  to  three  things:  (i) 
grants  of  lands;  (2)  grants  of  commercial  privileges;  (3) 
grants  of  civil  rights  and  political  powers.  The"'^overn- 
ment  did  not  found  a  single  colony.  Generally,  the  crown 
required  some  compensation  for  its  grants,  a  price  for  the 
lands  in  the  case  of  the  grant  to  Penn,  but  commonly  a  rent 
or  a  share  in  the  profits  of  the  enterprise.  Profits,  however, 
there  were  none,  and  rents  were  small.  England,  in  the 
long  run,  derived  great  commercial  advantages  from  her 
colonies;  but  the  original  founders  commonly  lost  the 
money  that  they  embarked  in  them.  Many  of  the  com- 
panies and  proprietors  surrendered  their  charters  to  the 
crown.  It  is  important  to  note  that  the  Thirteen  Colonies 
were  not  the  creatures  of  government  or  the  children  of 
patronage,  but  the  results  of  private  enterprise  and  public 
spirit ;  for  the  fact  had  much  to  do  with  the  development  of 
the  Colonial  character. 


THE  THIRTEEN  ENGLISH  COLONIES  PLANTED.     29 

48.  Classes  of  Colonists. — There  were  more  classes  of 
colonists  than  classes  of  colonies.  Some  men  were  moved 
by  the  love  of  adventure;  some  came  out  indentured  for  a 
term  of  years  to  the  company  or  proprietor  that  paid  their 
passage  money ;  a  few  were  criminals,  who  chose  emigra- 
tion rather  than  confinement  in  prison.  All,  or  nearly  all, 
sought  to  better  their  material  condition  in  life.  Many 
sought  civil,  political,  or  religious  liberty.  There  was  some 
admixture  of  nationalities  from  the  first.  In  the  Southern 
and  Northern  groups,  few  or  none  but  Englishmen  were 
found;  but  in  the  Middle  group,  there  were  also  Dutch, 
Swedes,  and  Germans.  Later,  there  was  an  infusion  of 
Scotch,  Irish,  and  French  blood.  Still,  at  the  beginning  of 
the  eighteenth  century  the  population  was  largely  homoge- 
neous. Taken  together,  the  American  emigration  was  of 
an  excellent  quality  throughout.  It  was  said  of  New  Eng- 
land :  "  God  sifted  a  whole  nation  that  He  might  send  choice 
grain  out  into  this  wilderness." 

49.  Ideas  of  the  English  Colonists. — English  colonial 
ideas  can  best  be  presented  by  putting  them  in  contrast  with 
the  ideas  of  the  Spanish  and  French  colonists. 

The  Spaniards  sought  in  the  New  World  adventure, 
dominion,  and,  above  all  else,  gold  and  silver.  Some  stress 
they  also  laid  on  the  evangelization  of  the  Indians.  The 
French  ideas  were  discovery  and  exploration,  the  fur  trade, 
the  conversion  of  the  Indians,  and  the  enhancement  of  the 
glory  of  France.  Neither  the  Spanish  nor  the  French  col- 
onists brought  with  them  new  ideas  to  plant  in  new  soil ; 
neither  sought  civil,  political,  or  religious  rights;  neither 
longed  for  better  government  or  a  freer  church;  neither 
cared  anything  or  knew  anything  of  the  passion  for  social 
improvement  that  was  so  powerful  a  factor  at  the  time  in 
England  and  in  the  English  colonies.  The  English  col- 
onists were  by  no  means  destitute  of  the  qualities  that  char- 
acterized their  neighbors,  but  their  master-ideas  were  indus- 
trial, political,  and  religious.  They  pursued  agriculture,  the 
fisheries,  and  commerce;  they  sought  their  fortunes  in  the 


30  THE  AMERICAN  GOVERNMENT. 

field  and  shop  and  on  the  sea,  rather  than  in  the  forest  or 
in  mines  of  precious  metals;  they  were  more  interested  in 
establishing  states  and  churches  where  they  could  be  free, 
than  in  converting  the  savages.  The  communities  that  they 
planted  throbbed  with  industrial  and  commercial,  civil  and 
political  life.  Accordingly,  the  English  colonies,  if  less 
romantic,  chivalrous,  and  picturesque  than  the  Spanish  and 
French  colonies,  were  more  practical,  more  modern,  more  in 
harmony  with  the  great  forces  of  our  present  civilization. 

The  colonizing  impulse  that  originated  in  the  reign  of 
Queen  Elizabeth,  and  that  led  to  the  colonies  of  Virginia 
and  New  England,  was  due  in  great  part  to  the  desire  on 
the  part  of  that  sovereign  and  her  advisers  to  limit  the 
power  of  Spain  in  the  New  World,  and  to  promote  the  ex- 
pansion of  England  and  the  Protestant  religion.^ 

50.  The  Rights  of  Englishmen. — The  charter  of  1606 
contained  a  guarantee,  forever  irrevocable,  unless  by  con- 
sent of  both  parties,  that  became  the  great  bulwark  of  colo- 
nial rights  and  liberties  in  the  contests  of  a  later  day.  The 
king  said: 

"  Also,  we  do,  for  us,  our  heirs,  and  successors,  declare, 
by  these  presents,  that  all  and  every  the  persons  being  our 
subjects,  which  shall  dwell  and  inhabit  within  every  and 
any  of  the  said  several  colonies  and  plantations,  and  every 
of  their  children  and  posterity,  which  shall  happen  to  be 
born  within  any  of  the  limits  and  precincts  of  the  said  colo- 
nies and  plantations,  thereof,  shall  have  and  enjoy  all  liber- 
ties, franchises  and  immunities  of  free  denizens  and  natural 
subjects  within  any  of  our  other  dominions,  to  all  intents 
and  purposes,  as  if  they  had  been  abiding  and  born  within 
this  our  realm  of  England,  or  in  any  other  of  our  do- 
minions." 

In  after  times  this  pledge  was  sometimes  called  the  Gj- 
lonial  Constitution.  It  was  also  repeated  in  later  charters. 
The  several  colonies  will  now  be  described  more  in  detail. 

*  See  Brown,  The  Genesis  of  the  U.  S.,  Introductory  Sketch. 


THE  THIRTEEN  ENGLISH  COLONIES  PLANTED.     31 
I.    The  Southern  Colonies. 

51.  Virginia.— Thp  political  history  of  the  United  States  begins 
with  the  founding  of  Jamestown,  Virginia,  by  the  London  Company 
in  1607.  The  charter,  which  was  renewed  and  somewhat  changed  in 
1609  and  1612,  gave  the  people  no  voice  whatever  in  the  government 
of  the  colony;  they  were  wholly  subject  to  the  company  and  to  the 
king,  and  there  was  much  dissatisfaction  and  murmuring  in  conse- 
quence. The  first  concession  to  popular  rights  was  made  in  1619, 
when  Governor  Yeardley,  in  order  that  the  planters  might  have  a 
hand  in  governing  themselves,  called  upon  them  to  choose  represent- 
atives to  a  legislative  assembly.  This  assembly,  called  the  House  of 
Burgesses,  was  the  first  legislative  body  that  sat  in  America.  Two 
years  later,  the  company  issued  an  ordinance  creating  a  General 
Assembly,  consisting  of  a  Council  of  State  appointed  by  the  com- 
pany, and  the  Burgesses  chosen  by  the  people.  This  colonial  legisla- 
ture was  authorized  to  make  general  laws  and  orders  for  the  behalf 
of  said  colony  and  the  good  government  thereof;  provided,  however, 
that  no  such  law  or  order  should  continue  in  force  unless  ratified  by 
the  company.  In  1624  the  Court  of  King's  Bench  declared  the  char- 
ter forfeited  to  the  crown,  and  Virginia  became  a  royal  colony. 
This,  however,  did  not  change  the  constitution  of  1619  and  1621. 

52.  Maryland. — In  1632,  Charles  I.  gave  the  two  peninsulas 
lying  on  the  ocean,  Chesapeake  Bay,  and  Potomac  River,  save  the 
tip  of  the  outer  one,  to  George  Calvert,  Lord  Baltimore.  The  grant 
was  bounded  north  by  the  fortieth  parallel.  The  charter  gave  Cal- 
vert the  soil  in  full  and  absolute  propriety,  authorized  him  to  plant  a 
colony  to  be  called  Maryland,  and  empowered  him  to  make  laws 
for  the  government  of  the  colony  with  the  consent  of  the  freemen. 
Calvert  dying,  his  son  Cecilius,  who  succeeded  to  the  title,  planted 
the  colony  in  1634.  Except  the  period  1688-1716,  when  the  crown 
usurped  the  appointment  of  the  governors,  the  charter  continued  in 
force  until  1771.  The  provision  that  compelled  the  proprietary  to 
consult  the  freemen  in  making  the  laws,  secured  to  them  from  the 
first  a  voice  in  the  government,  and  finally  a  representative  assembly. 

53.  The  Carolinas. — By  two  charters,  bearing  the  dates  of  1663 
and  1665,  Charles  II.  gave  the  territory  lying  between  29°  and  36°  30', 
from  sea  to  sea,  to  eight  lords  proprietors.  These  proprietors  were 
authorized  to  make  plantations,  to  enact  laws  with  the  consent  of 
the  freemen  of  the  colony,  and  to  appoint  governors.  In  time,  two 
groups  of  settlements  were  made ;  one  on  the  shore  of  Albemarle 
Sound,  and  the  other  south  of  Cape  Fear  River.  In  1729  the  propri- 
etors surrendered  to  the  crown  their  charter  and  province,  which 
two  years  later  was  divided  into  the  two  royal  colonies  of  North 
Carolina  and  South  Carolina. 


32  THE  AMERICAN  GOVERNMENT. 

54.  Georgia. — In  1732  George  II.  created  a  company  that  he 
styled  "  Trustees  for  establishing  the  Colony  of  Georgia  in  Amer- 
ica," having  the  following  objects:  To  strengthen  the  province  of 
Carolina  by  creating  a  new  one  between  it  and  the  Spaniards  and 
Indians ;  to  provide  a  refuge  for  poor  debtors  in  England ;  to  open 
an  asylum  for  the  persecuted  Protestants  in  Europe,  and  to  promote 
the  Christianization  and  civilization  of  the  Indians.  The  territory 
assigned  the  company  lay  between  the  Savannah  and  Ahamaha 
Rivers.  For  twenty-one  years  the  trustees  should  make  laws  and 
appoint  governors  for  the  ruling  of  the  colony.  The  first  settlement 
was  made  at  Savannah  in  1733.  The  trustees  gave  up  their  charter 
in  1751,  and  Georgia  then  took  her  place  among  the  royal  colonies. 

II.    The  Northern  Colonies. 

55.  The  Plymouth  Company. — This  company  was  less  vigorous 
than  its  London  rival.  Its  attempt  to  found  a  colony  on  the  coast 
of  Maine  was  defeated.  So  the  king,  in  1620,  gave  it  a  new  charter, 
with  larger  powers.  This  charter  covered  the  zone  lying  between 
40°  and  48°,  from  ocean  to  ocean,  to  which  it  gave  the  name  of  New 
England.  The  Council  at  Plymouth,  as  the  board  of  directors  was 
called,  now  took  a  more  active  part  in  American  affairs.  It  never, 
founded  colonies  itself,  but  it  granted  lands  to  those  who  did  found 
them.  Aft*  disposing  of  the  whole  New  England  shore,  the  com- 
pany, in  1635,  surrendered  its  charter  to  the  king  and  ceased  to  exist. 

56.  Plymouth. — The  first  permanent  settlement  in  New  Eng- 
land was  Plymouth,  made  by  the  Pilgrims  in  1620.  At  first  these 
seekers  after  religious  freedom  were  intruders  on  the  territory  of 
the  Plymouth  Company,  for  they  had  no  grant  of  lands ;  but  in  1621 
the  Council  made  them  a  grant,  which,  however,  it  did  not  bound  or 
locate,  and  authorized  them  to  set  up  a  government.  In  1629  the 
Council  gave  them  a  fuller  charter;  still,  as  no  charter  of  govern- 
ment was  considered  valid  unless  approved  by  the  crown,  and  as 
the  crown  withheld  its  approval,  the  government  of  Plymouth  was 
in  this  respect  irregular  and  unauthorized. 

57.  The  Plymouth  Compact. — Just  before  the  Pilgrims  landed 
at  Plymouth,  all  the  adult  males  of  the  company,  forty-one  in  num- 
ber, signed  a  compact,  under  which  was  carried  on  for  several  years 
a  purely  democratic  government.  The  freemen,  or  rather  so  many 
of  them  as  were  members  of  the  Church,  met  in  general  assembly 
and  enacted  laws.  In  1639  a  representative  body  took  the  place  of 
this  popular  legislature.  From  the  beginning,  the  freemen  elected 
the  governor  from  among  their  own  number.  Down  to  1691,  when 
Plymouth  was  merged  in  Massachusetts,  the  colony  continued  a  vol- 
untary association. 


THE  THIRTEEN  ENGLISH  COLONIES  PLANTED.     33 

58.  Massachusetts. — In  1628  a  number  of  English  Puritans 
who  were  intent  on  planting  a  Puritan  colony  in  New  England, 
obtained  from  the  Council  at  Plymouth  a  grant  of  lands  bounded 
north  and  south  by  parallel  lines  drawn  three  miles  north  of  Merri- 
mac  River,  and  three  miles  south  of  Charles  River,  extending  from 
ocean  to  ocean.  The  next  year  King  Charles  II.  gave  them  a  charter 
confirming  the  grant  and  conveying  to  the  grantees,  who  were  styled 
"  The  Governor  and  Company  of  the  Massachusetts  Bay  in  New 
England,"  powers  of  government.  What  is  called  "  the  great  emi- 
gration "  was  made  in  1630.  It  was  the  royal  intent  that  the  com- 
pany should  remain  in  England ;  but  it  transferred  itself,  charter  and 
all,  to  the  shores  of  Massachusetts  Bay,  thus  merging  the  company 
in  the  colony.  At  first,  the  assembly  consisted  of  all  the  freemen, 
but  a  representative  legislature  was  established  in  1634.  The  free- 
men chose  one  of  their  number  governor.  In  1684  the  king's  judges 
in  England  declared  the  charter  of  1629  forfeited,  and  the  king 
attempted  to  make  Massachusetts  a  royal  colony ;  but  the  people 
resisted  the  attempt,  and  in  1691  the  crown  granted  a  second  charter, 
less  liberal,  however,  than  the  former  one,  which  continued  in  force 
down  to  the  Revolution.  This  charter  merged  Plymouth,  New 
Hampshire,  Maine,  and  Nova  Scotia  in  Massachusetts ;  Nova  Scotia 
and  New  Hampshire  were  soon  detached;  Maine  continued  a  part 
of  Massachusetts  until  it  became  a  State  in  1820,  while  Massachu- 
setts and  Plymouth  were  never  again  separated. 

59.  Connecticut. — Three  groups  of  emigrants  from  Massachu- 
setts, which  they  left  because  they  could  not  carry  out  their  civil  and 
religious  ideas  in  that  colony,  planted  the  same  number  of  towns  on 
the  Connecticut  River  in  the  years  1634,  1635,  and  1636.  These 
towns  united  under  one  name  in  1639  and  adopted  a  constitution 
called  "  The  Fundamental  Orders  of  Connecticut."  In  1639,  also, 
New  Haven  and  some  other  settlements  on  Long  Island  Sound 
united  in  one  colony,  under  the  name  of  New  Haven.  Neither  one 
of  these  two  colonies  had,  at  first,  a  charter  of  government,  or  even 
a  title  to  the  lands  it  occupied  other  than  the  one  obtained  from  the 
Indians ;  but  in  1662  Charles  II.  granted  a  charter  that  merged  the 
two  colonies  in  one,  defined  its  boundaries,  and  endowed  it  with  the 
most  liberal  political  powers.  Save  in  the  period  1685-1690,  when  it 
was  temporarily  set  aside,  this  charter  remained  in  force  to  the 
year  1818. 

60.  Rhode  Island. — Rhode  Island  was  also  an  oflfshoot  from 
Massachusetts.  Roger  Williams  with  some  refugees  from  that  col- 
ony founded  Providence  in  1636,  and  another  band  of  refugees, 
Rhode  Island  the  year  following.  These  plantations  were  the  purely 
voluntary  undertakings  of  private  individuals.    They  had  at  first  no 

AM.  GOV. — 3 


34  THE  AMERICAN  GOVERNMENT. 

grants  either  of  land  or  of  political  powers,  but  a  series  of  charters, 
the  last  granted  by  Charles  II.  in  1663,  united  them  under  the  name 
of  Rhode  Island  and  Providence  Plantations,  confirmed  the  colony 
in  its  narrow  territory,  and  conferred  upon  it  the  most  ample  powers 
of  governme^it.  Although  temporarily  suspended  when  James  II. 
made  his  attack  on  the  New  England  charters  in  1685,  the  Rhode 
Island  charter  continued  in  force  until  1842. 

61.  New  Hampshire. — In  1622  the  Council  at  Plymouth  granted 
to  Captain  John  Mason  and  Sir  Ferdinando  Gorges  the  territory 
between  the  Merrimac  and  Kennebec  Rivers.  On  the  division  of 
this  grant,  that  part  lying  west  of  the  Piscataqua  River  fell  to  Mason, 
and  this  was  afterwards  confirmed  to  him  by  a  charter  given  by  the 
Council.  Some  feeble  settlements  were  made  about  1635,  under  the 
patronage  of  the  proprietor.  Massachusetts,  however,  claimed  the 
territory  under  her  charter  of  1629;  and  for  the  most  part  the  New 
Hampshire  settlements  were  subject  to  her  government  until  1692, 
when  New  Hampshire  became  a  royal  colony. 

III.    The  Middle  Colonies. 

62.  New  York. — Captain  Henry  Hudson  discovered  the  Hud- 
son River  in  1609,  and  soon  after  the  Dutch,  in  whose  service  he 
sailed,  planted  a  settlement  at  its  mouth.  Extending  their  explora- 
tions east  and  south,  the  Dutch  laid  claim  to  the  whole  coast  lying 
between  the  Connecticut  and  Delaware  Rivers ;  and  they  ultimately 
took  possession  of  New  Jersey  and  Delaware,  which  had  been  occu- 
pied by  the  Swedes,  as  well  as  the  valley  of  the  Hudson.  But  Eng- 
land always  claimed  these  territories,  and  in  1664  Charles  II.  gave 
them  to  his  brother  James,  Duke  of  York.  The  royal  duke  at  once 
dispatched  an  armed  force  to  the  mouth  of  the  Hudson  that  com- 
pelled the  Dutch  governor  to  surrender  all  New  Netherland,  as  the 
Dutch  called  their  province.  He  now  renamed  it  New  York.  It 
continued  a  proprietary  colony  until  1685,  when  on  the  accession  of 
the  duke  to  the  throne  of  England,  it  became  a  royal  colony.  From 
that  time  the  law-making  power,  subject  to  the  crown,  was  vested  in 
a  governor  and  council  appointed  by  the  crown,  and  an  assembly 
elected  by  the  people. 

63.  New  Jersey. — The  Duke  of  York,  on  coming  into  posses- 
sion of  New  Netherland,  immediately  granted  that  part  of  it  lying 
between  the  Delaware  River  and  the  ocean  to  Lord  Berkeley  and 
Sir  George  Carteret  as  lords  proprietors.  At  first  there  were  two 
colonies,  East  and  West  Jersey ;  but  in  1702,  when  the  proprietors 
surrendered  their  rights  to  the  crown,  the  Jerseys  were  reunited 
and  became  a  royal  colony.  For  a  time,  New  Jersey  had  the  same 
governor  as  New  York,  but  it  always  had  its  own  separate  assembly. 


THE  THIRTEEN  ENGLISH  COLONIES  PLANTED.    35 

64.  Pennsylvania. — In  1681  Charles  II.  made  William  Penn  a 
grant  of  the  territory  between  parallels  39°  and  42°  north  latitude, 
extending  westward  from  the  Delaware  River  five  degrees  of  longi- 
tude. Pennsylvania  was  founded  the  next  year.  Penn,  who  was 
empowered  by  the  charter  to  enact  laws  conformable  to  reason  and 
the  laws  of  England,  with  the  consent  of  the  freemen  of  the  colony, 
pursued  a  liberal  policy.  He  issued  "  frames  of  government,"  offer- 
ing civil,  political,  and  religious  rights  to  such*  persons  as  should  be- 
come settlers  within  his  province.  The  charter  of  1681  continued  in 
force  until  the  Revolution ;  then  the  State  of  Pennsylvania  assumed 
all  the  political  powers  that  belonged  to  Penn's  descendants,  and 
paid  them  a  large  sum  of  money  for  surrendering  their  property  in- 
terests in  the  soil. 

65.  Delaware. — The  territories  composing  the  present  State  of 
Delaware  lay  within  the  grant  made  to  Lord  Baltimore  in  1632,  but 
it  never  became  a  part  of  Maryland.  Some  settlements  that  the 
Swedes  had  made,  passed  to  the  Dutch  in  1655 ;  these  settlements, 
with  some  additional  ones  made  by  the  Dutch,  passed  to  the  Duke  of 
York  in  1664 ;  and  then  the  country  was  sold  by  the  Duke  to  William 
Penn  in  1682.  After  much  disputing.  Lord  Baltimore  surrendered 
lys  claim.  For  a  time  it  was  a  mere  appendage  of  Pennsylvania ; 
but  after  1703,  although  having  the  same  governor  as  that  colony,  it 
had  its  own  independent  assembly.  And  this  state  of  things  contin- 
ued until  Delaware  became  a  State  at  the  opening  of  the  Revolution. 


CHAPTER  II. 

HOW  THE  COLONIES  WERE  GOVERNED. 

References, 

I.  General  Bibliography. — Poore,  The  Federal  and  State  Con- 
stitutions, Colonial  Charters,  etc.;  Lalor,  Cyclopedia  of  Political 
Science,  etc.,  articles  on  the  several  colonies;  Chalmers's  Political 
Annals. 

II.  Histories  of  the  United  States. — Bancroft,  Vols.  I.,  II. 
("History  of  the  U.  S.  as  Colonies,  in  Three  Parts");  Hildreth, 
Vols.  I.,  II. ;  Winsor,  Vols.  III.-V. ;  Pitkin,  Political  and  Civil  His- 
tory of  the  U.  S.,  Chaps.  I.-V. ;  Thwaites,  The  Colonies,  24,  25 ; 
Johnston,  The  U.  S.,  History  and  Constitution,  I.,  II. ;  Hart,  Forma- 
tion of  the  Union,  Chap.  V. 

III.  Special  Works. — Story,  Commentaries  on  the  Constitution 
of  the  U.  S.,  Book  I. ;  Stevens,  Sources  of  the  Constitution,  Chap.  I. ; 
Frothingham,  The  Rise  of  the  Republic,  Chaps.  I.-IV. ;  Curtis,  His- 
tory of  the  Constitution,  Book  I.,  Chap.  I.;  Bryce,  The  American 
Commonwealth,  Part  I.,  Chaps.  II.,  III.;  Doyle,  Lodge,  and  Ameri- 
can Commonwealths,  same  as  in  previous  chapter;  Goldwin  Smith, 
The  United  States,  Chaps.  I.,  II. ;  Wilson,  The  State,  XL 

IV.  Local  Government. — Howard,  Local  Constitutional  History 
of  the  U.  S.,  particularly  Part  I. ;  Johns  Hopkins,  Studies  in  His- 
torical and  Political  Science,  First  Series  (many  similar  articles  are 
also  found  in  other  series,  as  the  Second  and  Third)  ;  Fiske,  The 
Beginnings  of  New  England,  and  Civil  Government  in  the  U.  S. 

V.  Growth  of  the  English  Constitution. — Stubbs,  The  Con- 
stitutional History  of  England;  Freeman,  Growth  of  the  English 
Constitution;  Taylor,  Origin  and  Growth  of  the  English  Constitu- 
tion, particularly  Introduction  ("English  origin  of  the  federal  repub- 
lic of  the  U.  S.")  ;  Green,  The  Making  of  England,  Chap.  IV.,  and 
History  of  the  English  People,  Books  I.-IV. 

66.  The  Three  Classes  of  Colonies. — As  we  have  seen 
in  the  last  chapter,  colonies  frequently  passed  from  one 
class  to  another.     Still,  the  three  original  types  were  pfe- 

(36) 


HOW  THE  COLONIES  WERE  GOVERNED.  37 

served  throughout  the  colonial  period.     This  is  the  group- 
ing at  the  time  of  the  Revolution : 

1.  Charter  Colonies:  Massachusetts,  Connecticut,  and 
Rhode  Island.  The  charters  u^ere  written  documents  guar- 
anteeing to  the  people  certain  rights,  and  they  may  be  com- 
pared to  the  State  constitutions  of  the  present  day.  They 
spr?ing,  however,  from  the  crown,  and  not  from  the  people. 

2.  Proprietary  Colonies :  Pennsylvania  and  Delaware 
and  Maryland.  The  proprietors,  William  Penn  and  Lord 
Baltimore  and  their  descendants,  held  their  provinces  by 
patents  emanating  from  the  king,  and  these  patents,  to- 
gether with  the  concessions  of  rights  and  privileges  made 
to  the  people  by  the  proprietors,  had  much  the  same  effect 
as  the  New  England  charters. 

3.  Royal  or  Provincial  Colonies:  New  Hampshire,  New 
York,  New  Jersey,  Virginia,  North  Carolina,  South  Caro- 
lina, and  Georgia.  The  governors  of  these  colonies,  in 
conjunction  with  assemblies  and  councils,  administered  them 
in  conformity  with  written  instructions  given  them  from 
time  to  time  by  the  crown.  No  charter  or  patent  stood 
between  the  colony  and  the  king;  at  the  same  time,  the 
various  concessions  that  the  crown  made  to  the  people,  to- 
gether with  the  customary  mode  of  government,  formed  a 
traditionary  constitution  or  charter. 

67.  Common  Political  Features. — While  the  thirteen 
colonies  differed  in  constitutional  features,  they  practically 
agreed  in  respect  to  governmental  form,  machinery,  and 
administration.  First,  the  sum  total  of  powers  and  func- 
tions was  distributed  to  local  and  to, central  institutions;  sec- 
ondly, the  powers  and  functions  distributed  to  each  class  of 
institutions  were,  in  the  main,  the  same ;  thirdly,  the  local 
institutions  had  certain  general  correspondences ;  and  fourth- 
ly, the  central  governments  conformed  to  one  general  type. 
These  local  and  central  institutions  will  now  be  briefly  de- 
scribed. Of  the  first  class,  there  were  three  types:  the 
Town  type,  found  in  New  England;  the  County  type,  found 
in  the  South ;  the  Mixed  type,  found  in  the  Middle  States. 


38  THE  AMERICAN  GOVERNMENT. 

I.    The  Town  Type. 

68.  The  Puritan  Ideas. — The  English  Puritans  desired 
to  diminish  the  consequence  of  the  higher  clergy  in  church 
government,  and  to  increase  that  of  the  local  pastors  and  of 
the  lay  membership.  They  also  desired  to  add  to  the  im- 
portance of  the  plain  people  in  all  matters  of  government. 
To  carry  out  these  ideas,  was  the  main  object  sought  by 
those  Puritans  who  came  to  New  England.  Furthermore, 
the  first  to  come  came  as  church  societies  accompanied  by 
their  ministers,  not  as  individuals.  Moreover,  they  mainly 
belonged  to  the  English  middle  class,  which  tended  to  foster 
a  feeling  of  equality  and  to  render  society  homogeneous. 

69.  The  First  Towns. — Such  a  church  society,  landing 
on  the  New  England  coast,  would  naturally  make  choice  of 

•some  suitable  spot  where  they  could  build  a  village  or  group 
of  houses,  and  so  all  go  to  the  same  church.  This  they  did, 
and  continued  to  do  as  they  moved  westward.  The  first 
towns  on  the  Connecticut  River  were  founded  by  similar 
congregations  migrating  from  Massachusetts.  Such  settle- 
ments were  favored  by  the  Massachusetts  government, 
which  made  grants  of  land  to  similar  societies  wishing  to 
live  near  together  and  attend  one  church.  In  later  times, 
emigrations  were  sometimes  made  to  the  West  in  the  same 
manner. 

70.  Influence  of  Physical  Conditions. — Physical  condi- 
tions tended  strongly  to  develop  the  village  feature  of  New 
England  civilization.  Large  farms  or  plantations  devoted 
to  a  single  staple,  as  tot^cco  or  rice,  were  an  impossibility ; 
the  country  admitted  only  of  small  farms  and  small  farm- 
ing. Then  villages  could  be  better  defended  against  Indian 
attacks  than  scattered  farms  and  houses.  The  rigor  of  the 
winter  climate  also  drove  the  people  together.  Besides,  the 
colonists  interested  themselves  in  commerce  and  fishing,  and 
finally  in  manufacturing,  as  well  as  in  agriculture ;  the  coast 
was  indented  with  natural  harbors:  and  these  circumstances 
favored  compact  societies  and  trading  marts. 


HOW  THE  COLONIES  WERE  GOVERNED.  39 

71.  Education  and  Schools. — The  founders  of  New 
England  were  educated  as  well  as  religious  men.  They 
believed  thoroughly  in  schools  and  in  education,  and  the 
school,  as  well  as  the  church,  tended  to  centralize  the  com- 
mon life.  The  first  school  law  of  Massachusetts,  enacted  in 
1647,  ordered  "  that  every  township  in  this  jurisdiction, 
after  the  Lord  hath  increased  them  to  the  number  of  fifty 
householders,  shafl  then  forthwith  appoint  one  within  their 
town  to  teach  all  such  children  as  shall  resort  to  him  to 
write  and  read,  .  .  .  .  ;  also  that,  where  any  town 
shall  increase  to  the  number  of  one  hundred  householders, 
they  shall  set  up  a  grammar  school,  the  master  thereof  being 
able  to  instruct  youth  as  far  as  they  may  be  fitted  for  the 
university."  A  public  school  system  was  also  established 
at  an  early  day  in  Connecticut. 

72.  The  Old  New  England  Town. — ^The  primal  cell  of 
the  New  England  political  organism  was  a  reproduction 
of  the  English  parish  under  the  name  of  the  town,  and  it 
presented  both  a  civil  and  an  ecclesiastical  phase.  As  a 
civil  organization,  it  regulated,  in  town  meeting  and  by  its 
magistrates,  all  civil  matters  of  merely  domestic  concern, 
and  for  this  purpose  imposed  and  collected  taxes.  It  had 
its  own  representation  in  the  colonial  assembly,  and  its  own 
militia  company.  As  an  ecclesiastical  organization,  it  was 
a  church  society,  choosing  its  own  minister  and  other  offi- 
cers, and  regulating  its  own  ecclesiastical  affairs.  In  1643 
counties  were  first  organized  in  Massachusetts.  Each  coun- 
ty had  its  own  regiment,  as  each  town  had  its  own  com- 
pany.    The  county  cut  a  small  figure  in  New  England. 

73.  Influence  of  the  System. — The  influence  of  local 
self-government  upon  New  England  life  was  very  great. 
It  proved  an  excellent  training  school  in  the  science  and 
the  art  of  politics.  Samuel  Adams,  who  had  more  to  do 
with  preparing  the  public  mind  of  Massachusetts  for  the 
Revolution  than  any  other  one  man,  has  been  called  the 
man  of  the  town  meeting.  Mr.  Jefferson  expressed  great 
admiration  for  town  government,  and  strove  to  introduce  it 


40  THE  AMERICAN  GOVERNMENT. 

into  Virginia.  He  said :  "  These  wards,  called  townships 
in  New  England,  are  the  vital  principle  of  their  govern- 
ments, and  have  proved  themselves  the  wisest  invention 
ever  devised  by  the  wit  of  man  for  the  perfect  exercise  of 
self-government  and  for  its  preservation."  And  again: 
"  These  little  republics  would  be  the  main  strength  of  the 
great  one.  We  owe  to  them  the  vigor  given  to  our  Revo- 
lution in  its  commencement  in  the  Eastern  States." 

II.    The  County  Type. 

74.  Early  Virginia  Life. — In  social  factors  Virginia 
differed  from  Massachusetts.  First,  the  emigrants  did  not 
bring  with  them  democratic  ideas  in  relation  to  religion 
and  civil  affairs,  but  were  content  with  the  English  church 
and  state  systems.  They  did  not  come  as  organized  socie- 
ties, but  as  individuals.  Secondly,  social  distinctions  were 
far  more  marked  in  the  emigration ;  there  were  paupers  and 
criminals  as  well  as  gentlemen  and  tradespeople.  Thirdly, 
the  physical  conditions  were  very  different.  Tlfe  rivers, 
which  have  been  called  "  fingers  of  an  ocean  hand," 
brought  seagoing  vessels  to  the  planter's  own  dock,  thus 
rendering  commercial  towns  at  first  unnecessary.  Lands 
were  granted  to  individuals,  not  to  communities,  and  in  any 
quantity  that  they  desired.  Men  of  capital  bought  large 
tracts  suitable  for  growing  tobacco,  just  as  men  of  capital 
in  later  times  bought  similar  tracts  in  Dakota  suitable  for 
growing  wheat.  Previous  to  1776,  when  entails  were  abol- 
ished, the  oldest  son  commonly  inherited  his  father's  landed 
estate.  There  were  small  farms,  but  the  tendency  was  to 
large  plantations.  Plantation  life  compelled  men  to  live  in 
the  country,  while  a  genial  climate  and  a  picturesque  nature 
rendered  country  life  very  attractive  and  enjoyable.  In 
time  the  absence  of  towns  became  a  serious  inconvenience; 
there  was  little  trade  and  less  manufacturing;  transporta- 
tion, save  on  the  rivers,  was  difficult,  and  the  people  were 
mainly  dependent  upon   foreign  merchants.     Efforts  were 


HOW  THE  COLONIES  WERE  GOVERNED.  41 

now  made  to  stimulate  the  building  of  towns,  but  they 
were  commonly  fruitless.  Few  towns  were  built,  and  these 
were  small. 

75.  The  Virginia  Parish. — This  was  a  reproduction, 
with  some  changes,  of  the  English  parish.  The  parish  au- 
thority was  the  vestry,  composed  of  twelve  men,  who  were 
at  first  elected  by  the  people,  but  who  afterwards  filled  the 
vacancies  that  occurred  in  their  own  number.  The  vestry 
levied  the  parish  taxes,  appointed  the  church  wardens, 
looked  after  the  poor,  and  settled  the  minister  of  the  parish. 
The  sexton  and  the  parish  clerk  may  also  be  mentioned. 
There  were  no  schools  or  town  meetings. 

76.  The  Virginia  County. — This  was  the  political  unit 
of  the  colony.  But  since  the  county  could  not  well  meet  in 
county  meeting,  as  the  New  England  town  met  in  town 
meeting,  local  government  was  representative,  not  demo- 
cratic. The  justices  of  the  peace,  usually  eight  in  number, 
formed  the  county  court.  They  were  appointed  by  the  gov- 
ernor, commonly  on  the  nomination  of  the  court  itself, 
which  made  the  court  a  close  corporation  like  the  vestry. 
The  court  appointed  its  own  clerk,  who  kept  the  county  as 
well  as  the  court  records,  and  nominated  a  list  of  three  can- 
didates from  whom  the  governor  appointed  the  sheriff.  Be- 
sides its  judicial  functions,  the  court  had  charge  of  the  con- 
struction of  roads,  highways,  and  bridges,  appointed  the 
constables,  had  charge  of  ferries,  admitted  attorneys  to  the 
practice  of  the  law,  licensed  innkeepers,  and,  in  early  times 
divided  the  county  into  parishes.  The  other  county  officers 
were  the  coroner,  the  surveyor,  and  the  lieutenant,  who  was 
chief  commander  of  the  militia  and  administrator  of  the 
military  laws.  The  county  was  represented  by  two  bur- 
gesses in  the  House  of  Burgesses. 

77.  Taxation. — The  vestry  had  a  limited  power  of  levy- 
ing taxes  for  parish  purposes.  The  county  court  made  the 
county  levy,  and  the  General  Assembly  the  colonial  levy. 
The  sheriff  was  the  fiscal  officer.  "  He  was  not  only  col- 
lector of  both  public  and  county  levies,  and  sometimes  that 


42  THE  AMERICAN  GOVERNMENT. 

of  the  parish,  but  he  was  the  custodian  of  the  tobacco  re- 
ceived, paying  it  out  on  the  proper  warrant  and  rendering 
account  therefor  to  the  county  or  provincial  court.  He 
was,  in  short,  ex  oificio  county  treasurer — there  being  no 
officer  bearing  that  name  in  Virginia."  ^ 

78.  The  Southern  States. — Conditions  similar  to  those 
that  prevailed  in  Virginia  in  colonial  days  prevailed  also  in 
the  other  Southern  Colonies.  This  likeness  of  conditions 
tended  to  create  likeness  of  social  and  political  ideas  and 
institutions.  Besides,  the  influence  of  Virginia  on  the  whole 
South  was  considerable.  As  a  result,  the  county  system  of 
government,  with  minor  modifications,  was  established  in 
all  these  colonies. 

79.  Influence  of  the  System. — The  county  system  in 
colonial  times  tended  to  create  an  aristocratic  and  central- 
ized local  government.  And  yet  Virginia,  in  1776,  was  as 
well  prepared  for  independence  as  Massachusetts.  Hence 
we  must  seek  out  the  popular  element  in  her  political  life. 
The  vestrymen  were  usually  the  most  discreet  farmers ;  dis- 
tributed through  the  parish,  they  were  acquainted  with  the 
details  and  economy  of  private  life,  and  they  found  ample 
inducements  to  execute  their  duties  well  in  their  phil- 
anthropy, in  the  approbation  of  their  neighbors,  and  in  the 
resulting  distinction.  The  parish  and  county  government 
was  open  to  the  public  eye.  On  the  political  stump,  which 
originated  in  pre-Revolutionary  days,  were  discussed  the 
rights  of  the  colonies  and  their  relations  to  England.  The 
centralized  administration  created  able  political  leaders,  just 
as  the  town  meeting  created  a  well-instructed  democracy; 
while  the  forces  of  American  life  tended  to  array  both  alike 
against  the  crown  and  Parliament. 

HI.    The  Mixed  Type. 

80.  The  Middle  Colonies. — The  mixed  system  was  due 
to  a  variety  of  causes.     First,  population  was  less  homo- 

*  Howard,  Local  Constitutional  History  of  the  U.  S.,  Vol.  I.,  p.  399. 


HOW  THE  COLONIES  WERE  GOVERNED.  43 

geneous  in  the  Middle  Colonies  than  in  New  England  or 
in  Virginia.  The  character  of  the  country  and  of  the  people 
tended  to  produce  a  type  of  life  midway  between  the  town 
life  of  the  North  and  the  plantation  life  of  the  South.  Be- 
sides, the  influence  upon  these  colonies  of  the  older  ones 
was  considerable.  Hence  there  appeared  here  a  mixed 
form  of  local  government.  In  fact  there  were  two  forms 
of  the  system,  one  originating  in  New  York  and  the  other 
in  Pennsylvania. 

81.  Local  Government  in  New  York. — The  Dutch 
created  in  New  York  manors,  villages,  and  chartered  towns, 
but  nothing  corresponding  to  the  county.  After  the  con- 
quest, in  1664,  there  was  progressively  developed  a  dual 
system  that  gave  more  prominence  to  the  county  than  Mass- 
achusetts, and  more  prominence  to  the  township  than  Vir- 
ginia. But  the  township  was  first,  and  retained  the  local 
powers  not  delegated  to  the  county. 

82.  Local  Government  in  Pennsylvania. — ^William 
Penn  substantially  destroyed  the  work  of  the  Dutch  and  the 
Duke  of  York  when,  in  1682,  he  reorganized  the  local  in- 
stitutions of  Pennsylvania.  He  set  up  an  exclusive  county 
organization.  "  The  county  thus  instituted  was  employed 
for  all  the  important  purposes  of  self-government.  It  was 
a  judicial  organism,  a  unit  of  general  civil  administration, 
and  a  fiscal  body."  Afterwards,  owing  to  the  thickening  of 
population  among  other  causes,  the  township  appeared  and 
began  to  develop  in  the  colony.  It  grew  up  at  the  expense 
of  the  county,  as  the  county  grew  up  at  the  expense  of  the 
township  in  New  York. 

83.  Framework  of  the  Central  Governments. — In 
every  colony  the  central  government  consisted  of  three 
branches,  the  Legislative,  the  Executive,  and  the  Judicial. 
Save  in  Pennsylvania,  Delaware,  and  Georgia,  the  Legis- 
latures were  bicameral,  not  unicameral ;  that  is,  they  con- 
sisted of  a  lower  house,  commonly  called  the  Assembly  or 
House  of  Representatives,  and  an  upper  house  called  the 
Council.     In  the  colonies  mentioned,  the  Council  had  no 


44  THE  AMERICAN  GOVERNMENT. 

legislative  power,  but  was  merely  an   advisory   executive 
body. 

84.  Powers  of  the  Central  Governments. — The  word 
colony  expresses  dependence  more  or  less  strict.  Hereafter 
we  shall  see  how  the  nature  and  extent  of  colonial  depend- 
ence on  England  became  the  subject  of  angry  contention; 
here  it  will  suffice  to  describe  the  usual  course  of  govern- 
ment. 

The  Legislature  claimed  the  right  to  legislate  on  all  mat- 
ters of  merely  local  concern,  and  this  the  home  government 
usually  granted.  The  charters  enjoined  the  colonies  not 
to  infringe  upon  the  laws  of  England;  and  about  the  close 
of  the  seventeenth  century  Parliament  enacted  that  "  all 
laws,  by-laws,  usages,  and  customs,  which  should  be  en- 
forced in  any  of  the  Plantations,  repugnant  to  any  law  made, 
or  to  be  made,  in  this  kingdom,  relative  to  said  Plantations 
shall  be  utterly  void  and  of  non-effect."  The  power  to  de- 
cide what  was  repugnant,  the  home  government  retained  in 
its  own  hands.  All  the  colonies  but  Rhode  Island  and 
Maryland  were  required  to  submit  their  laws  to  the  crown 
for  its  approval;  still,  they  took  effect  immediately  on  their 
passage,  and  continued  in  force  until  formally  set  aside. 
Save  in  Connecticut  and  Rhode  Island,  the  Governor  had  a 
veto  on  all  legislation ;  he  could  also  adjourn  the  Legisla- 
ture, and  in  some  instances  dissolve  it  and  call  for  the 
election  of  a  new  Assembly.  The  Legislatures  voted  all 
colonial  taxes.  The  Courts 'adjudicated  all  cases  arising 
under  the  colonial  laws,  subject,  however,  to  an  appeal  to 
the  king  in  council.  Mr.  Bryce's  statement,  "  practically 
each  colony  was  a  self-governing  commonwealth,  left  to 
manage  its  own  affairs,  with  scarcely  any  interference  from 
home,"  is  a  true  description  of  the  times  preceding  the  dif- 
ferences leading  to  the  Revolution. 

85.  Civil  and  Religious  Rights. — Speaking  generally, 
the  colonists  who  came  to  America  seeking  larger  civil  lib- 
erty found  what  they  sought  for.  They  possessed  all  the 
civil  rights  of  Englishmen.     Trial  by  jury  in  both  civil  and 


HOW  THE  COLONIES  WERE  GOVERNED.  45 

criminal  cases,  and  the  writ  of  habeas  corpus  were  firmly 
established.  The  rights  of  life,  property,  and  person  were 
the  common  possession  of  the  people,  save  as  modified  by 
the  laws  relating  to  religion.  Religious  liberty  was  less 
fully  secured  than  civil  liberty.  In  New  England,  save 
Rhode  Island,  the  Congregational  Church  was  established 
by  law  and  supported  by  taxation,  as  the  Episcopal  Church 
was  in  Virginia  and  in  some  of  the  other  colonies.  Upon 
the  whole,  the  colonies  were  fully  abreast  of  any  communi- 
ties in  the  world  in  respect  to  civil  and  religious  rights,  and 
far  in  advance  of  most  of  them. 

86.  Political  Rights. — In  all  the  colonies,  the  pjeople 
participated  in  carrying  on  the  government,  but  in  different 
degrees.  The  people  elected  the  more  numerous  and  pow- 
erful branch  of  the  Legislature.  In  Connecticut  and  Rhode 
Island,  they  also  elected  the  Council  and  the  Governor.  In 
Massachusetts,  the  Assembly  elected  the  Council  subject  to 
the  governor's  veto.  In  the  proprietary  colonies,  the  pro- 
prietors appointed  the  Governor  and  the  Council.  In  the 
royal  colonies,  the  crown  appointed  both  the  Council  and 
the  Governor.  The  crown  also  appointed  the  Governor  in 
Massachusetts,  which  was  a  semi-royal  colony.  In  some 
colonies,  the  Judges  were  for  a  time  elected  by  the  legisla- 
ture, but  at  last  they  were  all  appointed  by  the  crown,  or  by 
the  governor  acting  in  the  name  of  the  crown. 

87.  The  Elective  Franchise. — The  right  to  vote  was 
sometimes  regulated  by  charter,  sometimes  by  law,  some- 
times by  royal  instructions  to  governors,  and  sometimes  by 
custom.  The  regulations  varied  in  different  colonies,  and 
in  the  same  colony  at  diflPerent  times.  The  county  fran- 
chise and  the  town  franchise  did  not  always  agree.  The 
statutes  did  not  forbid  the  suflFrage  to  the  Negro  or  the 
Indian,  if  he  were  otherwise  qualified,  save  in  the  South. 
There  was  a  tendency  to  confine  voting  to  British  subjects 
either  by  birth  or  naturalization.  The  New  England  colo- 
nies were  disposed  to  impose  moral  qualifications,  as  that  a 
person  who  had  been  fined  or  whipped  for  any  scandalous 


46  THE  AMERICAN  GOVERNMENT. 

offense  should  not  vote  until  the  court  should  manifest  its 
satisfaction.  For  a  time,  most  of  the  same  colonies  limited 
the  suffrage  to  church  members.  As  a  rule  Roman  Catho- 
lics were  excluded  from  voting.  Quakers  were  sometimes, 
but  not  generally,  disqualified  in  terms,  but  their  hesitation 
to  take  oaths  often  had  that  result.  The  rule  was  that  an 
elector  must  be  twenty-one  years  of  age.  Custom  ex- 
cluded women,  but  not  the  law  save  in  Virginia.  There 
were  also  residential  qualifications,  while  property  qualifica- 
tions appear  to  have  been  universal.  The  Massachusetts 
charter  of  1691  provided  that  no  person  should  vote  for 
members  to  serve  in  the  General  Court  unless  he  had  a  free- 
hold estate  in  land  to  the  value  of  forty  shillings  per  annum 
at  the  least,  or  other  estate  to  the  value  of  forty  pounds 
sterling.  Many  of  the  colonies  required  a  freehold  estate, 
some  of  them  laying  less  stress  on  its  value  than'  on  its  size. 
Thus,  Virginia  confined  the  suffrage  to  freeholders  who  had 
fifty  acres  of  untilled  land,  or  twenty-five  acres  with  a  plan- 
tation including  a  house  twelve  feet  square. 

In  New  England  freeman  was  originally  a  technical  term, 
and  it  continued  such  in  Connecticut  and  Rhode  Island  until 
the  nineteenth  century.  "  A  freeman  did  not  become  such 
unless  he  possessed  certain  prescribed  qualifications,  and 
until  he  had  been  approved,  admitted,  and  sworn."  When 
that  had  been  done,  "  his  position  was  analogous  to  that  of 
a  freeman  in  a  city  or  borough,  and  as  such  he  became  en- 
titled to  the  exercise  of  the  right  of  the  elective  franchise."  ^ 

This  outline  of  Colonial  Government  will  be  all  the  more 
intelligible  and  instructive  when  compared  with  a  similar 
one  of  the  government  of  England. 

88.  The  Saxon  Township. — The  unit  of  political  organization 
in  England  is  the  township.  Its  original  must  be  sought  in  the  vil- 
lage community  and  mark  of  Germany;  the  community  being  a 
social  organization  occupying  the  mark,  as  its  home  was  called. 
The  original  bond  was  blood  relationship.    "  As  they  fought  side  by 

'  See  Cortland  F.  Bishop,  History  of  Elections  in  the  American  Colonies. 
Columbia  College,  1893.  The  above  paragraphs  in  relation  to  suffrage  are  com- 
piled from  this  monograph. 


HOW  THE  COLONIES  WERE  GOVERNED.  47 

side  on  the  field,"  says  Mr,  Green,  "  so  they  dwelt  side  by  side  on 
the  soil.  Harling  abode  by  Harling,  and  Billing  by  Billing,  and 
each  '  wick '  and  '  ham  '  and  '  stead  '  and  '  ton  '  took  its  name  from 
the  kinsmen  who  dwelt  in  it.  In  this  way,  the  house  or  '  ham '  of 
the  Billings  was  Billingham,  and  the  town  or  township  of  the  Har- 
lings  was  Harlington."  ^  In  the  course  of  time,  considerable  changes 
were  made  in  this  primitive  society.  As  a  factor  in  the  feudal  sys- 
tem, it  became  the  manor  subject  to  a  lord;  as  a  factor  in  the  church 
system,  the  parish  presided  over  by  a  priest.  But  the  township  has 
never  ceased  to  be  the  primary  unit  of  the  English  constitution.  Mr. 
Green  thus  describes  the  Saxon  township  government: 

"  The  life,  the  sovereignty,  of  the  settlement  was  solely  in  the 
body  of  the  freemen  whose  holdings  lay  round  the  moot-hill,  or  the 
sacred  tree,  where  the  community  met  from  time  to  time  to  order  its 
own  industry  and  to  make  its  own  laws.  Here  new  settlers  were 
admitted  to  the  freedom  of  the  township,  and  by-laws  framed  and 
head-men  and  tithing-men  chosen  for  its  governance.  Here  plough- 
land  and  meadow-land  were  shared  in  due  lot  among  all  the  vil- 
lagers, and  field  and  homestead  passed  from  man  to  man  by  the 
delivery  of  a  turf  cut  from  its  soil.  Here  strife  of  farmer  with 
farmer  was  settled  according  to  the  customs  of  the  township  as  its 
eldermen  stated  them,  and  four  men  were  chosen  to  follow  headman 
or  ealdorman  to  hundred-court  or  war." ' 

89.  The  Hundred. — In  Saxon  England,  as  in  ancient  Germany, 
the  townships  were  incorporated  into  the  hundred,  the  head-man  of 
which  was  the  hundred-man,  elder,  or  reeve.  Here  appeared  the 
principle  of  representation,  the  germ  of  republican  government. 
Says  Mr.  Green : 

"  The  four  or  ten  villagers  who  followed  the  reeve  of  each  town- 
ship to  the  general  muster  of  the  hundred,  were  held  to  represent 
the  whole  body  of  the  township  from  whence  they  came.  Their 
voice  was  its  voice,  their  doing  its  doing,  their  pledge  its  pledge. 
The  hundred  moot,  a  moot  which  was  made  by  this  gathering  of  the 
representatives  of  the  townships  that  lay  within  its  bounds,  thus 
became  at  once  a  court  of  appeal  from  the  moots  "of  each  separate 
village,  as  well  as  of  arbitration  in  dispute  between  township  and 
township." ' 

Although  the  hundred  fell  out  of  place  in  England,  the  name  ap- 
pears in  the  history  of  several  of  the  American  States. 

90.  The  Shire  or  County. — This  was  an  aggregation  of  hun- 
dreds.   The  head-man  of  the  shire  was  at  first  styled  the  elderman 


*  The  Making  of  England,  p.    182. 

'Ibid.,  pp.    187,    188.  — -■ 

'History  of  the  English  People.  Vol.   I.,  p.   14. 


48  THE  AMERICAN  GOVERNMENT. 

or  alderman ;  afterwards  the  shire-reeve,  or  the  sheriff,  appeared  as 
the  special  representative  of  the  king.  The  shire-moot  was  rather  a 
judicial  than  a  political  body.  Mr.  Green  thus  describes  the  latter 
form  of  the  shire-moot : 

"  The  local  knighthood,  the  yeomanry,  the  husbandmen  of  the 
county,  were  all  represented  in  tlie  crowd  that  gathered  round  the 
sheriff,  as,  guarded  by  his  liveried  followers,  he  published  the  king's 
writs,  announced  his  demands  of  aids,  received  the  presentment  of 
criminals  and  the  inquest  of  the  local  jurors,  assessed  the  taxation  of 
each  district,  or  listened  solemnly  to  appeals  for  justice,  civil  and 
criminal,  from  all  who  held  themselves  oppressed  in  the  lesser  courts 
of  the  hundred  or  the  soke.  ...  In  all  cases  of  civil  or  criminal 
justice  the  twelve  sworn  assessors  of  the  sheriff,  as  members  of  a 
class,  though  not  formerly  deputed  for  that  purpose,  practically  rep- 
resented the  judicial  opinion  of  the  county  at  large.  From  every 
hundred  came  groups  of  twelve  sworn  deputies,  the  jurors  through 
whom  the  presentments  of  the  district  were  made  to  the  royal  officer, 
and  with  whom  the  assessment  of  its  share  in  the  general  taxation 
was  arranged."^ 

91.  The  Kingdom  of  England. — The  Saxon  invaders  founded 
many  dominions  in  Britain ;  in  due  time,  these  dominions  were 
united  into  one  kingdom  under  the  name  of  England,  the  completed 
union  dating  from  the  ninth  century.  This  kingdom  was  composed 
of  the  shires  or  counties,  and  was  governed  by  the  king  and  his 
council,  which  was  a  representative  body  consisting  of  the  aldermen, 
the  bishops,  whose  dioceses  at  first  coincided  with  the  shires,  and  the 
royal  thegns,  or  nobles  whom  the  king  had  created.  The  council 
was  called  the  Witenagemot,  or  Council  of  the  Wise.  From  this 
simple  government,  the  present  imperial  system  of  Great  Britain 
was  progressively  developed.  The  council  proper  became  the  law- 
making authority,  the  king  the  law-executing  authority.  The  single 
assembly  became  the  two  legislative  houses,  the  House  of  Lords 
and  the  House  of  Commons,  the  one  representing  the  aristocratic 
and  the  other  the  popular  elements  of  the  state.  A  well-known 
statute  in  the  25th  Edward  I.  declared  that  "  no  tallage  or  aid " 
(that  is,  tax)  should  be  taken  or  levied  without  the  good  will  and 
assent  of  Parliament,  composing  the  archbishops,  bishops,  earls, 
barons,  knights,  burgesses,  and  other  freemen  of  the  land.  In  time 
the  power  to  vote  all  supplies  was  expressly  limited  to  the  Com- 
mons. The  power  to  decide  certain  cases  at  law  that  the  king  and 
council  at  first  possessed,  passed  to  a  cycle  o'f  courts,  except  that 
the  House  of  Lords  continued  to  retain  a  certain  appellate  jurisdic- 
tion.   When  this  evolution  was  completed,  the  three  functions  of 

*  History  of  the  English  People,  I.,  353. 


HOW  THE  COLONIES  WERE  GOVERNED.  49 

government  had  been  committed  to  three  separate  branches  or 
departments :  the  legislative  to  Parliament,  the  executive  to  the 
Crown,  and  the  judicial  to  the  Courts  of  Law.  The  crown  finally 
lost  its  veto  on  legislation ;  but  about  the  time  when  the  veto  became 
obsolete,  a  practical  working  connection  between  the  legislature  and 
the  executive  was  effected  by  means  of  the  device  called  the  Minis- 
try, and  sometimes  the  Administration  and  the  Government.  It  is 
to  be  said,  however,  that. all  these  lines  had  not  been  clearly  drawn 
when  the  English  colonies  were  established. 

92.  The  English  System  Free.— it  will  be  seen  that  the  Saxons 
established  in  England  a  free  system  of  government.  It  was  carried 
on  partly  by  the  freemen  themselves,  and  partly  by  their  representa- 
tives. The  king  was  not  regarded  as  ruling  by  divine  right,  but  as 
the  delegate  of  the  nation.  It  combined  therefore  both  democratic 
and  republican  elements.  Time  wrought  its  changes;  the  monarch- 
ical, aristocratic,  and  democratic  elements  varied  in  strength  at  dif- 
ferent times ;  but  the  great  features  of  the  Saxon  constitution  were 
never  lost,  and  the  government  progressively  became  ,the  freest  in 
the  world. 
,  93.  Likeness  of  the  Colonies  to  England. — ^The  above  recital 
of  facts  shows  how  like  the  thirteen  colonies  were  to  the  parent  state. 
With  variations  of  detail,  they  all  reproduced  the  political  institu- 
tions of  England ;  and,  save  that  they  were  not  sovereign  states,  they 
were  Englands  in  miniature.  Their  town,  county,  and  mixed  sys- 
tems of  local  government  were  an  outgrowth,  under  new  conditions, 
of  the  local  institutions  of  England.  Their  legislative,  executive, 
and  judicial  departments  were  copies  of  the  Parliament,  king,  and 
courts  of  England.  The  houses  of  representatives  and  the  councils 
were  the  House  of  Commons  and  the  House  of  Lords  over  again. 
In  fact,  in  some  of  the  colonies  the  lower  house  was  called  the 
House  of  Commons.  The  people  in  England  voted  for  members  of 
the  House  of  Commons  only ;  and  in  the  colonies,  with  the  exception 
S>i  the  two  republican  colonies  of  Connecticut  and  Rhode  Island,  they 
voted  only  for  members  of  the  popular  branch  of  the  legislature.  An 
appointed  Council  had  taken  the  place  of  the  hereditary  House  of 
Lords,  and  an  appointed  Governor  the  place  of  the  hereditary  King. 
More  men  relatively  exercised  the  right  of  suffrage  in  the  colonies 
than  in  England,  but  their  suffrage  did  not  directly  affect,  with  the 
exceptions  named,  more  departments  of  the  government.  Hence, 
the  common  statement  that  the  colonists  came  to  America  with  new 
political  ideas  cannot  be  true  of  governmental  forms  and  processes. 
In  this  respect  they  brought  nothing  new  and  established  nothing 
new.  They  wished  to  give  the  people  more  weight  in  conducting  the 
government  according  to  the  old  forms,  and  this  they  accomplished. 

AM.  GOV. — 4 


50  THE  AMERICAN  GOVERNMENT. 

Besides,  they  were  more  interested  in  enlarging  their  civil  and  reli- 
gious rights  than  their  political  rights. 

94.  New  Modes  of  Government  Rejected. — At  first  some  new 
modes  of  government,  or  at  least  modes  unknown  to  the  English  peo- 
ple, were  attempted.  In  Virginia  the  first  local  government  was  a 
despotism  centered  in  the  Council,  limited  only  by  the  company  and 
the  king  in  England.  Plymouth  and  Massachusetts  both  tried  de- 
mocracy for  a  few  years.  Moreover  government  by  commercial  com- 
panies such  as  the  charters  of  1606  and  1620  contemplate,  or  by  a 
benevolent  association,  as  in  Georgia,  was  foreign  to  the  English 
mind  and  habit.  The  thoroughness  with  which  these  devices  were  swept 
away,  and  the  uniformity  and  promptness  with  which  forms  and 
modes  of  government  familiar  to  the  people  were  established,  show 
the  strength  of  political  habit.  Perhaps,  too,  proprietary  government 
would  have  gone  with  the  others,  but  for  the  fact  that  it  was  simple 
and  easily  understood,  the  proprietary  being  merely  a  lieutenant-king. 

95.  The  Dual  System. — Circumstances,  however,  made  one  im- 
portant departure  from  English  precedent  necessary.  This  was  dual 
government,  the  double  jurisdiction  of  the  crown  and  the  colony. 
If  the  planters  had  not  insisted  upon  being  admitted  to  participation 
in  public  affairs,  they  would  not  have  been  Englishmen.  If  the 
king  had  not  insisted  upon  extending  his  authority  over  the  Planta- 
tions, he  would  have  had  no  colonies.  Mr.  Bryce  says  the  American 
of  to-day  has  "  two  loyalties  and  two  patriotisms."  His  colonial  an- 
cestors had  them  also.  At  Jamestown  and  Boston  are  found  the 
roots  of  our  federal  system. 

96.  The  Governments  Growths. — These  well-defined  govern- 
ments, although  they  conformed  so  closely  to  the  English  model, 
were  not  set  up  at  given  places  or  times.  Like  all  really  useful  po- 
litical institutions,  they  were  progressively  developed.  Not  one  of 
the  charters  fully  describes  the  government  existing  in  the  colony 
organized  under  it.  The  Declaration  of  Independence  charged  the 
king  with  conspiring  with  others  to  subject  the  colonies  to  a  juris- 
diction foreign  to  their  constitution.  This  language  relates  to  the 
colonies  collectively,  as  one.  But  the  colonies  as  one  had  no  con- 
stitution in  the  sense  that  the  United  States  have  one  to-day.  They 
did,  however,  have  a  constitution  in  a  wider  and  less  definite  sense. 
The  forms  of  government  transplanted  from  England ;  the  rights  and 
usages  belonging  to  all  Englishmen  and  expressly  guaranteed  to  the 
colonies, — these,  modified  by  American  conditions,  made  up  the  con- 
stitution that  the  king  sought  to  overthrow. 

97.  English  Colonies  Compared  with  New  Spain  and  New 
France. — Nothing  could  more  clearly  show  the  remarkable  polit- 
ical genius  of  the  English  colonists  than  such  a  comparison  carefully 


HOW  THE  COLONIES  WERE  GOVERNED.  51 

wrought  out.  The  Spanish  and  French  colonies  were  established  by 
patronage  or  power,  and  they  were  ruled  in  the  spirit  of  absolutism 
by  royal  governors.  They  did  not  desire  self-government;  in  fact, 
did  not  know  what  it  is ;  and  the  more  paternal  the  government  be- 
came the  more  content  they  were.  When  Count  Frontenac  took 
steps  in  the  direction  of  establishing  municipal  institutions  at  Que- 
bec, Colbert,  the  great  French  minister,  reproached  him,  saying :  "  It 
is  well  for  you  to  observe  that  you  are  always  to  follow,  in  the  gov- 
ernment of  Canada,  the  forms  in  use  here;  and  since  our  kings  have 
long  regarded  it  as  good  for  their  service  not  to  convoke  the  States- 
General  of  the  kingdom,  in  order,  perhaps,  to  abolish  insensibly  this 
ancient  usage,  you  on  your  part,  should  very  rarely,  or,  to  speak 
more  correctly,  never  give  a  corporate  form  to  the  inhabitants  of 
Canada.  You  should  even,  as  the  colony  strengthens,  suppress  grad- 
ually the  office  of  the  syndic,  who  presents  petitions  in  the  name  of 
the  inhabitants ;  for  it  is  well  that  each  should  speak  for  himself, 
and  no  one  for  all."  *  Political  life  is  impossible  under  such  a  regime 
as  this.  The  Thirteen  Colonies  came  up  in  a  very  different  way; 
and,  save  in  times  of  war,  they  were  never  so  happy  as  when  crown 
and  Parliament  left  them  most  severely  alone. 


*  Parkman,  Count  Frontenac,  page  20. 

Note. — Within  a  few  years  a  disposition  has  been  shown,  and  notably  by 
Mr.  Douglas  Campbell  (see  The  Puritan  in  Holland,  England,  and  America)  to 
emphasize  Dutch  influence  in  the  development  of  American  institutions,  largely 
to  the  exclusion  of  English  influence.  To  repel  the  extreme  claim  that  has  been 
made,  it  is  not  necessary  to  deny  Dutch  influence  altogether.  A  recent  writer 
sums  up  the  contention  as  follows  : 

"  (i)  It  is  claimed  that  America  was  influenced  by  Holland,  because  Hol- 
land exerted  an  influence  over  England.  But  it  is  evident  that  this  particular 
line  of  influence,  whatever  it  may  have  been,  reached  America  through  England. 
Little  is  said  by  these  one-sided  writers  of  any  influence  exerted  by  England 
over  Holland.  (2)  It  is  claimed  that  because  the  Pilgrims  and  some  of  the 
early  Puritans  passed  through  Holland  on  their  way  to  America,  they  were  con- 
trollingly  influenced  by  the  Dutch.  But  there  is  practically  an  ignoring  of  the 
fact  that  these  men  had  spent  the  greater  part  of  their  lives  in  England,  and 
were  by  birth  and  blood  Englishmen.  (3)  It  is  claimed  that  by  means  of  com- 
mercial transactions,  Holland  and  New  Amsterdam  influenced  the  social  life  of 
the  colonists.  But  the  long  and  bitter  hostility  of  the  colonists  toward  the 
Dutch  is  unmentioned.  And  the  fact  is  left  out  of  sight,  that  the  main  contact 
and  commerce  of  the  colonies,  down  to  the  very  last,  was  with  England." 
Stevens,  Sources  of  the  Constitution,  page  19. 


CHAPTER  III. 

AMERICA  INDEPENDENT. 
References. 

I.  Histories  of  the  United  States. — Bancroft,  Vols.  II.-V. 
("  The  American  Revolution,  in  Five  Epochs  ")  ;  Hildreth,  Vols.  II., 
III.;  Winsor,  Vol.  VI.,  particularly  Chap.  I.,  "The  Revolution  Im- 
pending " ;  Pitkin,  Chaps.  VI.-IX. ;  Johnston,  The  U.  S.,  III.,  IV. ; 
Hart,  Chap.  III. 

II.  Special  Works,  Articles,  Etc. — Greene,  Historical  View  of 
the  American  Revolution,  I. ;  Goodloe,  The  Birth  of  the  Republic 
(a  compilation  of  documents)  ;  Johnston,  "  Congress,  Continental," 
and  "  Declaration  of  Independence,"  in  Lalor ;  Story,  Book  II.,  Chap. 
I.;  Frothingham,  Chaps.  V.-XI. ;  Woodburn,  Causes  of  the  Ameri- 
can Revolution  (J.  H.  U.  Studies,  Tenth  Series,  XII.)  ;  Curtis,  His- 
tory of  the  Constitution,  Book  I.,  Chaps.  II.,  III. ;  Wilson,  The  State, 
XI.;  Burke,  Speech  on  Taxation  of  America,  and  Speech  on  Con- 
ciliation of  America. 

III.  English  Writers. — Goldwin  Smith,  The  United  States, 
Chaps.  I.,  II. ;  Seeley,  The  Expansion  of  England,  Course  I.,  Lec- 
ture 8;  Lecky,  History  of  England  in  the  Eighteenth  Century,  Chaps. 
XII.,  XVJII. ;  Green,  History  of  the  English  People,  Book  IV., 
Chap.  II. 

98.  Growth  of  the  Colonies. — At  first  the  growth  of  the 
colonies  was  slow,  afterwards  rapid.  This  growth  included 
all  the  material  and  moral  elements  of  power — territory, 
population,  wealth,  intelligence,  and  religion.  In  the.  war 
that  transferred  the  French  dominions  on  the  continent  east 
of  the  Mississippi  to  England,  the  colonies  were  a  prominent 
factor.  Colony,  which  first  meant  a  single  feeble  settlement 
on  the  seashore,  now  meant  a  vigorous  and  thriving  com- 
monwealth. The  Virginia  of  1775,  for  example,  was  no 
longer  Jamestown,  but  a  noble  province  that  extended  to  the 
Ohio  River,  embracing  many  hundred?  of  plantations  and 
containing  half  a  million  of  people. 

(52) 


AMERICA  INDEPENDENT.  53 

99.  Population. — In  colonial  days  there  were  no  reg- 
ular or  complete  censuses ;  and  historians,  dealing  with 
population  and  wealth,  are  compelled  to  rely  on  very  im- 
perfect data.  Mr.  Bancroft  supposes  that  the  population  of 
the  country  in  1774  was  2,600,000.^  This  is  about  one- 
fourth  of  the  population  of  England  and  Wales  at  that  time. 
Nearly  all  of  this  population  was  American-born.  To  no 
colony  had  the  emigration  from  Europe  been  of  long  con- 
tinuance, or  great  in  numbers.  The  younger  colonies,  to 
a  considerable  extent,  drew  their  population  from  the  older 
ones. 

100.  Wealth  and  Commerce. — Unfortunately,  there  are 
no  statistics  showing  the  growth  of  wealth,  or  its  total 
amount  at  any  one  time.  Great  progress  was  made,  how- 
ever, in  agriculture,  in  lumbering,  and  in  fisheries,  consid- 
erable progress  in  manufactures,  and  some  in  mining. 
Durand  wrote  of  the  colonies  in  1766:  "  They  are  too  rich 
to  remain  in  obedience." 

101.  Independence  Declared. — All  this  time  the  con- 
spicuous fact  in  the  politics  of  these  commonwealths  was 
their  dependence  upon  England.  But,  suddenly,  as  the 
casual  European  observer  must  have  thought,  there  came  a 
great  change.  Early  in  the  year  1775,  the  colonies  united 
to  resist  by  force  of  arms  the  efforts  of  the  mother  country 
to  govern  them ;  and  on  July  4,  1776,  the  Continental  Con- 
gress, representing  them  all,  published  and  declared : 

"  That  these  United  Colonies  are,  and  of  right  ought  to 
be,  free  and  independent  States ;  that  they  are  absolved 
from  all  allegiance  to  the  British  crown,  and  that  all  polit- 
ical connection  between  them  and  the  state  of  Great  Britain 
is,  and  ought  to  be,  totally  dissolved ;  and  that  as  free 
and  independent  States  they  have  full  power  to  levy  war, 
conclude  peace,  contract  alliances,  establish  commerce,  and 
to  do  all  other  acts  and  things  which  independent  states 
may  of  right  do." 

»  History,  Vol.  IV.,  p.  63. 


54  THE  AMERICAN  GOVERNMENT. 

The  British  colonies  in  North  America  now  became  the 
United  States  of  North  America.  The  War  of  Independ- 
ence made  the  declaration  good.  As  the  planting  of  these 
colonies  was  the  most  far-reaching  event  of  the  seventeenth 
century,  so  their  independence  was  the  most  far-reaching 
event  of  the  eighteenth. 

102.  Cause  and  Occasion  of  the  War. — The  Declara- 
tion of  Independence  assigns  the  causes  that  impelled  the 
colonies  to  separation.  These  causes  form  a  "  history  of 
repeated  injuries  and  usurpations,  all  having  in  direct  ob- 
ject the  establishment  of  an  absolute  tyranriy  over  these 
States."  The  facts  recited  were  rather  the  occasion  than 
the  cause  of  separation.  The  American  Revolution  was  a 
step  in  that  grand  march  of  civilized  man  toward  larger 
freedom  and  better  political  institutions,  which  began  in 
Europe  in  the  fifteenth  century,  and  has  continued  until 
the  present  day.  This  movement  was  felt  in  England  be- 
fore the  American  Plantations  were  made,  and  was  partic- 
ularly vigorous  in  the  seventeenth  century.  In  America, 
it  went  forward  with  more  momentum  than  in  England. 
The  American  Revolution  was  a  kind  of  continuation  of 
the  English  revolutions  of  1642  and  1688;  and  its  best 
definition  is,  a  clash  between  the  republican  ideas  of  America 
and  the  monarchical  and  aristocratical  ideas  of  England. 
The  Declaration  of  Independence  and  the  Constitution  of 
the  United  States  belong  to  the  same  series  of  great  char- 
ters of  human  rights  as  Magna  Charta,  the  Petition  of 
Right,  the  Bill  of  Rights,  and  the  Reform  Bill.  At  the 
utmost,  the  facts  recited  in  the  Declaration  were  only  proxi- 
mate, and  not  original,  causes  of  the  division  of  the  British 
Empire. 

103.  Idea  of  Nationality. — The  colonies  occupied  the 
edge  of  a  vast  territorial  empire  that  was  the  fit  home  of  a 
great  sovereign  people.  -A  people  had  been  slowly  forming 
in  this  empire  worthy  to  possess  it.  They  were  2,600,000 
in  number.  They  abounded  in  that  capacity  for  self-gov- 
ernment  which    is   so   characteristic   of   the   English   race. 


AMERICA  INDEPENDENT.  55 

They  represented  the  advanced  civil,  poUtical,  and  rehgious 
ideas  of  the  world.  At  the  beginning,  they  sought  only  a 
redress  of  grievances;  for  a  full  year,  they  shrank  from 
cutting  the  ties  that  bound  them  to  the  mother  country; 
and  yet,  unconsciously  to  themselves,  the  idea  of  nationality 
had  slowly  been  taking  form  in  their  minds.  The  name 
"  Continental  "  given  to  the  Congress,  the  army,  and  the 
cause  shows  how  readily  they  caught  the  vision  of  inde- 
pendent empire.  Turgot  wisely  said  that  "  Colonies  are 
like  fruits,  which  cling  to  the  tree  only  till  they  ripen." 

An  historical  review  will  illustrate  the  foregoing  state- 
ments. 

104.  England  in  1603. — In  1603  England  was  a  great  and 
progressive  state.  In  no  country  did  the  people,  on  the  whole,  enjoy 
more  civil,  political,  and  religious  rights.  In  a  long  series  of  strug- 
gles with  arbitrary  power,  the  people  had  won  a  large  measure  of 
freedom.  In  these  respects,  the  Englishman  of  Queen  Elizabeth's 
time  was  far  in  advance  of  his  contemporaries  on  the  Continent, 
save  alone  the  Hollander. 

105.  The  English  Revolution  of  1642. — Soon  after  the  House  of 
Stuart  came  to  the  throne,  there  came  a  crisis  in  English  history. 
Broadly  stated,  the  issue  when  defined  was,  How  much  power  shall 
belong  to  the  king,  and  how  much  to  Parliament?  Narrowly  stated, 
Shall  the  king  levy  taxes  that  have  not  been  voted  by  the  House  of 
Commons?  When  Charles  I.  could  not  obtain  a  parliament  that 
would  conform  to  his  wishes,  he  undertook  to  govern  without  one; 
and  this  attempt  brought  on,  in  1642,  a  civil  war,  that  finally  ended, 
in  1649,  in  his  death,  the  overthrow  of  the  monarchy,  and  the  estab- 
lishment of  the  Commonwealth.  Religious  rights  were  also  involved 
in  the  struggle.  And  it  is  important  to  note  that  the  first  British  col- 
onies in  America  were  planted  while  this  long  contest  was  going  on. 

106.  Political  Character  of  the  Colonists. — The  colonists 
brought  with  them  to  America  all  the  free  political  institutions  that 
had  slowly  grown  up  in  England.  The  royal  charters  guaranteed  to 
them  the  common  rights  and  liberties  of  Englishmen.  Moreover,  a 
large  number  of  them  held  the  most  advanced  civil,  political,  and  re- 
ligious views  then  held  in  England.  Not  a  few  of  them — all  in  fact, 
who  founded  New  England,  and  some  in  other  colonies — left  the 
mother  country  on  account  of  these  views.  Thus,  to  an  extent  the 
men  who  planted  the  colonies  were  even  more  pronounced  in  their 
political  and  religious  sentiments  than  the  men  who  successfully 
resisted  tyranny  in  England.     Some  of  them  were  the  same  men. 


56  THE  AMERICAN  GOVERNMENT. 

107.  The  Growth  of  Free  Sentiments. — The  English  institu- 
tions and  ideas  brought  to  America  were  virile,  and  all  the  conditions 
were  favorable  to  their  growth.  Population  was  sparse;  the  re- 
straints of  old  and  thickly  peopled  societies  were  in  a  measure  re- 
moved; the  Plantations  were  separated  from  the  Old  World  by  the 
Atlantic  Ocean.  Men  living  in  the  forests  of  America  were  not 
likely  to  pay  great  deference  to  a  distant  government  that  had  left 
them  to  depend  upon  themselves.  Everything  tended  to  engender  the 
spirit  of  freedom,  and  the  spirit  of  freedom  finally  ripened  into  the 
spirit  of  independence.  It  is  not  strange,  therefore,  that  at  the  end 
of  a  century  and  a  half,  the  people  of  the  colonies  came  to  hold  ad- 
vanced opinions  concerning  human  rights  and  the  nature  and  powers 
of  government.  Still,  the  bonds  of  society  were  not  relaxed ;  on  the 
other  hand,  the  people  were  generally  as  devoted  to  law,  order,  and 
civil  obedience  as  any  in  the  world. 

What  the  advanced  political  views  of  the  colonists  were,  when 
the  struggle  with  England  culminated,  can  best  be  learned  from  the 
Declaration  of  Independence.  They  were  pure  republicanism.  Sim- 
ilar views  were  then  found  in  books  written  by  political  philosophers, 
but  no  government  rested  upon  them  as  a  foundation. 

108.  The  English  Revolution  of  1688. — In  the  war  of  1642-1649, 
the  popular  party  in  England  won  the  day.  But  by  1660  that  party 
had  lost  its  hold  on  the  country,  and  the  Stuarts  came  back  to  the 
throne.  Charles  II.  ruled  in  a  very  arbitrary  manner,  and  his 
brother,  James  II.,  who  succeeded  him  in  1685,  in  a  manner  still 
more  arbitrary.  The  result  was  a  second  revolution  that,  in  1688, 
drove  King  James  from  the  country,  made  William  of  Orange  king, 
and  once  more  started  England  on  a  course  of  political  progress. 
The  rights  for  which  the  popular  party  had  contended  were  now 
effectually  secured.  The  independence  and  supremacy  of  Parlia- 
ment were  established,  and  the  Bill  of  Rights  enacted.  Never  again 
did  any  English  king  attempt  what  some  of  the  old  kings  had  done. 
So  far,  the  general  courses  of  events  in  England  and  America  were 
parallel.  Indeed,  the  two  series  of  events  made  lip  the  one  move- 
ment that  the  English-speaking  race  was  making  toward  larger  rights 
and  greater  freedom.  Neither  series  can  be  understood  without  the 
other.  Still  it  must  be  said  that  some  of  the  colonies,  notably  Vir- 
ginia, sympathized  with  the  Stuarts. 

109.  Later  Course  of  Events  in  England. — Still,  the  mother 
country  did  not,  and  could  not,  keep  pace  with  the  colonies  in  the 
progress  of  political*  ideas.  The  ascendency  of  the  House  of  Com- 
mons, as  representing  the  nation,  was  secured,  but  the  House  of 
Lords  and  the  king  were  still  powerful.  The  old  Royalist  party  was 
crushed,  and  finally  disappeared  altogether;  but  there  soon  appeared 


AMERICA  INDEPENDENT.  57 

a  new  conservative  party  called  the  Tories,  embracing  a  majority  of 
the  nobility  and  nearly  all  the  clergy  of  the  Established  Church, 
which  was  devoted  to  maintaining  in  full  vigor  the  hereditary  parts 
of  the  government.  The  Whigs  or  liberal  party  were  practically 
content  with  what  had  been  gained,  and  were  adverse  to  further 
changes.  For  the  time,  political  progress  in  England  was  mainly 
arrested;  now  one  party  and  then  another  governed  the  country,  and 
there  were  no  political  issues  intimately  aflfecting  the  rights  of  men. 
In  1760  George  III.  came  to  the  throne.  He  was  a  man  of  narrow 
mind,  of  intense  convictions,  a  thorough  Tory  filled  with  the  royal 
prerogative,  and  resolved  on  playing  the  part  of  a  king.  He  would 
rule  as  well  as  reign.  He  failed  in  the  end  to  carry  out  his  ideas; 
but  he  arrested  for  a  time  political  progress  in  England,  and  brought 
on  the  American  war. 

no.  The  Way  Prepared  for  Separation. — From  an  early  time  it 
had  been  found  difficult  to  adjust  the  practical  relations  of  the  col- 
onies to  the  mother  country;  and  the  more  the  colonies  increased  in 
strength,  the  more  difficult  the  problem  became.  It  is,  therefore, 
obvious  that,  if  England  and  the  colonies  continued  to  move  on  the 
lines  now  marked  out,  only  a  fitting  occasion  would  be  necessary  to 
bring  them  into  collision.  It  would  be  skillful  management,  or 
great  good  fortune,  that  could  ultimately  prevent  .the  republican 
ideas  of  America  from  clashing  with  the  monarchical  ideas  of  Eng- 
land. The  collision  came  in  1775.  It  did  not  spring  from  accidental 
or  momentary  causes.  Had  the  British  government  pursued  a  con- 
ciliatory course,  the  day  of  collision  and  separation  would  have  been 
deferred,  how  long  no  one  can  tell ;  but  the  king  was  too  self-willed, 
his  ministers  too  subservient,  Parliament  too  narrow  in  its  views 
and  too  determined,  to  pursue  such  a  course.  The  people  of  every 
colony  were  subject  to  two  jurisdictions,  one  local  and  one  general, 
that  must  be  adjusted  to  each  other.  To  effect  such  adjustment 
caused  no  little  friction ;  and  the  colonies  and  the  mother  country 
got  on  peaceably  as  long  as  they  did,  only  because  neither  one 
pushed  its  theory  of  colonial  relations  to  an  extreme,  each  yielding 
something  to  the  other  and  thus  effecting  a  compromise.  England 
was  very  proud  of  her  American  colonies ;  but,  as  though  blind  to 
all  the  forces  that  tended  to  separation,  she  pursued  a  policy  that 
led  by  swift  steps  to  their  loss. 

III.  American  Theory  of  Colonial  Dependence. — The  colonists 
had  decided  views  of  their  proper  relations  to  the  home  govern- 
ment, as  well  as  of  the  proper  nature  and  powers  of  government  in 
general.  They  held  that  the  dominion  which  the  Cabots  had  dis- 
covered in  America  belonged  to  the  king  rather  than  to  the  king- 
dom  of   England.     Englishmen   adventuring   into   this  dominion  to 


58  THE  AMERICAN  GOVERNMENT. 

plant  colonies,  were  entitled  to  all  the  privileges  of  free-bom  Eng- 
lishmen at  home;  trial  by  jury,  habeas  corpus,  and  exemption  from 
taxes  that  their  own  representatives  had  not  voted.  The  British 
Empire  was  not  one  dominion,  but  several  dominions.  Every  one  of 
these  dominions  had,  or  should  have,  its  own  legislature  to  enact 
laws  for  its  government;  no  legislature  had  jurisdiction  over  all. 
Dr.  Franklin  said :  "  Our  kings  have  ever  had  dominions  not  sub- 
ject to  the  English  Parliament."  He  pointed  to  Scotland,  to  Ire- 
land, and  Hajiover.  Before  its  union  with  England,  Scotland  was  a 
dominion  of  the  king,  but  had  its  own  parliament  that  enacted  all 
local  laws ;  while  at  the  time  the  Doctor  wrote,  Ireland  and  Hanover 
still  had  their  independent  legislatures.  Franklin  said  further: 
"  America  is  not  part  of  the  dominions  of  England,  but  of  the  king's 
dominions.  England  is  a  dominion  itself,  and  has  no  dominions?" 
"  Their  only  bond  of  union  is  the  king."  "  The  British  legislature 
are  undoubtedly  the  only  proper  judges  of  what  concerns  the  wel- 
fare of  that  state;  the  Irish  legislature  are  the  proper  judges  of 
what  concerns  the  Irish  state ;  and  the  American  legislatures  of 
what  concerns  the  American  states  respectively."  The  word  colony 
was  objected  to  as  not  expressing  the  true  relations  of  America  and 
England,  since  it  implied  the  dependence  of  the  one  upon  the  other. 
The  colonies  were  not  one  dominion  but  thirteen  dominions;  and 
in  every  one  the  colonial  legislature  was  as  supreme  as  Parliament 
was  in  England.  Parliament,  therefore,  had  nothing  more  to  do 
with  Massachusetts  or  Virginia  than  the  legislatures  of  those  col- 
onies had  to  do  with  England,  or  than  Parliament  itself  had  to  do 
with  Ireland  or  Hanover.  The  king,  who  alone  had  a  voice  in  the 
matter,  had,  in  their  charters,  guaranteed  to  the  colonies  the  Csm- 
mon  Law  so  far  as  this  was  applicable  to  their  condition,  and  he  was 
now  powerless  to  withdraw  what  he  had  then  conceded.  Thus  re- 
pudiating all  power  of  Parliament  over  them,  the  colonies  held  the 
king  responsible  for  everything  done  in  England  relating  to  Ameri- 
can affairs.  Many  of  the  things  complained  of  in  the  Declaration 
of  Independence  were  acts  of  Parliament ;  but  the  Continental  Con- 
gress, not  once  mentioning  Parliament,  charged  them  all  upon  the 
king. 

Such,  in  outline,  was  the  American  theory  of  colonial  relations. 
Still  no  one  pretended  that  this  theory  had  ever  been  fully  carried 
out  in  practice. 

112.  The  British  Theory. — The  common  British  theory  was, 
that  Englishmen  did  not  cease  to  be  Englishmen  when  they  emigrat- 
ed to  the  American  dominions  of  the  king;  that  the  power  of  Parlia- 
ment, to  which  they  were  subject  in  the  old  home,  followed  them  to 
the  new  one;  that  the  American  colonies  were  subject  in  all  things 


AMERICA  INDEPENDENT.  59 

to  Parliament ;  and  that  Parliament  could  yield  them  more  or  fewer 
powers  of  self-government  for  a  time,  and  then  withdraw  them.  It 
was  also  claimed  that  the  colonies  were  already  represented  in  the 
pouse  of  Commons,  since  the  members  of  that  body  did  not  repre- 
sent particular  districts  or  constituencies,  but  the  whole  empire.  The 
right  of  suffrage  was  a  very  different  thing  from  the  right  of  repre- 
sentation. Even  in  England,  it  was  said,  but  a  small  number  of  per- 
sons voted.  Besides,  the  colonies  themselves  had  repeatedly  acknowl- 
edged the  authority  of  Parliament  by  submitting  to  its  legislation. 
Still  no  one  pretended  that  this  theory  had  ever  been  fully  carried 
out.  It  was  an  outgrowth  of  the  current  European  ideas  of  the 
nature  and  object  of  colonies. 

113.  The  Colonial  System. — In  the  days  of  American  coloniza- 
tion, the  maritime  powers  of  Europe  did  not  see  in  the  New  World 
fields  for  the  planting  and  expansion  of  European  civilization,  but 
fields  for  the  extension  of  their  own  power.  They  did  not  plant  col- 
onies in  the  hope  that  these  would  become  flourishing  independent 
states,  but  in  the  hope  that  they  would  add  to  the  wealth  and  power 
of  the  mother  countries.  Colonies  would  produce  commodities  that 
the  mother  countries  wanted  to  buy,  and  consume  commodities  that 
those  countries  wanted  to  sell.  It  was  a  matter  of  markets,  of  the 
carrying  trade,  and  maritime  and  naval  power.  Mr.  Grenville  thus 
summed  up  the  colonial  system :  "  Colonies  are  only  settlements 
made  in  distant  parts  of  the  world  for  the  improvement  of  trade, 
and  they  would  be  intolerable  except  on  the  conditions  named  in  the 
Acts  of  Navigation."  Lord  Sheffield  said,  "  The  only  use  of  Ameri- 
can colonies  is  the  monopoly  of  their  consumption  and  the  carriage 
of  their  produce." 

114.  The  Navigation  Acts. — The  first  of  the  Navigation  Acts, 
without  which,  according  to  Mr.  Grenville,  colonies  would  be  intol- 
erable, was  almost  as  old  as  the  colonies  themselves.  Their  sole 
object  was  the  upbuilding  of  British  commerce,  and  how  disadvan- 
tageous to  the  colonies  they  might  prove  to  be,  was  never  so  much 
as  asked.  In  165 1  it  was  enacted  that  all  the  colonies  should  export 
only  to  England  such  products  as  they  had  to  sell,  arid  should  send 
them  in  English-built  ships.  In  1660  the  import  trade  was  similarly 
limited.  In  1672  taxes  were  imposed  on  the  trade  between  the  dif- 
ferent colonies.  In  1694  the  exportation  of  wool,  yarn,  or  woolen 
manufactures  to  any  place  whatever  was  prohibited.  In  1719  the 
House  of  Commons  condemned  all  American  manufactures  as  tend- 
ing to  independence.  In  1732  the  exportation  of  hats  was  forbidden; 
and  in  1750,  rolling  mills,  iron  furnaces,  and  forges  were  declared 
nuisances "  to  be  suppressed  by  the  colonial  governors.  The  finest 
pine  trees  in  the  forests  were  marked  with  the  "broad  arrow,"  de- 


6o  THE  AMERICAN  GOVERNMENT. 

noting  that  they  had  been  selected  as  masts  for  the  king's  ships,  and 
that  they  must  not  be  cut  by  the  lumberman.  Even  Lord  Chatham 
said  that  in  a  probable  contingency  he  would  not  allow  the  colonies 
to  make  a  hobnail.  As  early  as  1671,  Sir  William  Berkeley,  gov- 
ernor of  Virginia,  complained  that  the  navigation  laws  were  a 
"  mighty  and  disastrous  "  obstruction  to  the  prosperity  of  that  col- 
ony. "  We  cannot,"  he  said,  "  add  to  our  plantations  any  commodity 
that  grows  out  of  it,  as  olive  trees,  or  cotton,  or  vines.  Besides  this, 
we  cannot  produce  any  skillful  men  for  our  hopeful  commodity  of 
silk,  and  it  is  not  lawful  for  us  to  carry  pipe-stems  or  a  basket  of 
corn  to  any  place  in  Europe  out  of  the  king's  dominions."  Later, 
the  execution  of  these  laws  was  much  relaxed,  and  the  colonial  trade 
was  not  much  interrupted;  but  in  1760  the  home  government  set 
about  their  vigorous  execution.  This  attempt  the  colonies  resented. 
Says  Mr.  Bancroft:  "American  independence,  like  the  great  rivers 
of  the  country,  had  many  sources ;  but  the  head  spring  which  colored 
all  the  stream  was  the  Navigation  Act." 

115.  Moral  Interests  of  the  Colonists  Disregarded. — Facts 
showing  the  habitual  disregard  of  the  moral  interests  of  the  colonies 
are  numerous.  Sir  Robert  Walpole,  the  British  minister,  told  Bishop 
Berkeley,  who  proposed  to  found  a  university  in  America,  that  while 
the  labor  and  luxury  of  the  Plantations  might  be  of  great  advantage 
to  the  mother  country,  their  advancement  in  literature,  the  arts,  and 
sciences  could  never  be  of  any  service  to  her.  A  Virginia  commis- 
sioner who  asked  of  the  royal  attorney  an  increased  allowance  for 
the  churches  of  that  colony,  pleaded :  "  Consider,  sir,  that  the  peo- 
ple of  Virginia  have  souls  to  save."  He  was  answered :  "  Damn 
your  souls !  make  tobacco."  Such  indifference  to  colonial  sentiment 
made  a  deep  impression  in  America. 

116.  The  Compromise  Theory. — The  conflict  between  America 
and  England  began,  as  the  conflict  between  King  Charles  and  Parlia- 
ment began,  about  taxation.  Down  to  1760,  the  home  government 
had  imposed  customs  duties  on  the  foreign  and  intercolonial  com- 
merce of  America  and  the  people  had  paid  them.  More  than  this, 
the  home  government  did  not  attempt.  The  Congress  of  1774  said 
that,  since,  from  their  local  and  other  circumstances,  they  could  not 
be  represented  iri  Parliament,  they  were  entitled  to  a  free  and  exclu- 
sive power  of  legislation  in  their  provincial  legislatures,  where  their, 
right  of  representation  tould  alone  be  preserved,  in  all  cases  of  taxa- 
tion and  internal  polity,  subject  only  to  the  negation  of  the  sover- 
eign. They  also  said,  from  the  necessity  of  the  case,  and  a  regard  to 
the  internal  interest  of  both  countries,  they  cheerfully  consented  to  the 
operation  of  such  acts  of  the  British  Parliament  as  were," 6ona  -fide, 
restrained  to  the  regulation  of  their  external  commerce,  for  the  pur- 


AMERICA  INDEPENDENT.  6l 

pose  of  securing  the  commercial  advantages  of  the  whole  empire  to 
the  mother  country  and  the  commercial  benefits  of  its  respective 
members.  The  colonies  not  only  paid  the  expenses  of  their  own 
governments,  but  contributed,  as  called  on,  to  the  royal  treasury. 
Meantime,  the  home  government  carefully  abstained  from  levying  in 
the  colonies  internal  taxes.  Whenever  the  king  desired  their  finan- 
cial assistance,  he  called  on  the  several  colonial  legislatures  to  vote 
supplies,  just  as  he  called  on  the  English  or  the  Irish  Parliament, 
and  just  as  he  had  called  on  the  Scottish  Parliament  before  the 
Union ;  and  these  supplies  the  colonial  legislatures  voted  with  such 
liberality  that,  more  than  once.  Parliament  refunded  to  them  por- 
tions of  their  contributions.  It  was  said  in  England — and  this  was  a 
part  of  the  English  theory — that  the  power  to  levy  external  taxes 
involved  the  power  to  levy  internal  taxes.  This  the  colonies  denied. 
The  English  race  is  not  given  to  fighting  over  theories ;  and  so  long 
as  the  home  government  did  not  attempt  to  levy  internal  taxes,  the 
two  parties  managed  to  get  on  together,  although  their  relations 
were  often  strained.  The  first  attempt  to  levy  such  taxes,  in  con- 
nection with  the  new  attempt  to  enforce  the  Navigation  Acts,  fired 
the  train  that  a  century  had  been  laying. 

117.  The  Close  of  the  French  and  Indian  War. — The  long 
struggle  between  England  and  France  in  North  America  came  to  an 
end  in  1763.  England  was  burdened  with  debt,  and  compelled  to 
look  in  every  quarter  for  increased  financial  resources.  George  III. 
was  intent  on  carrying  out  his  notioris  of  prerogative.  Tory  influ- 
ence was  in  full  ascendency.  The  Thirteen  Colonies  had  now 
reached  an  aggregate  population  of  about  2,000,000;  together,  they 
had  at  one  time  kept  20,000  armed  men  in  the  field  in  the  late  war; 
they  had  gained  a  severe  discipline  in  that  struggle,  and  they  had 
learned  their  own  strength  and  resources ;  the  conquest  of  Canada 
removed  their  fears  of  attack  from  that  quarter,  such  as  had  con- 
stantly haunted  them  since  1688,  and  they  were  fully  prepared  to 
resist  all  aggressions  on  their  cherished  rights.' 

118.  British  Theory  Put  into  Execution. — The  home  govern- 
ment thought  the  time  a  favorable  one  to  abandon  the  compromise 
theory,  and  to  give  effect  to  the  British  theory.  In  1760  it  sent  or- 
ders to  the  American  customhouses  to  enforce  the  Navigation  Acts. 
The  customs  officers,  armed  with  writs  of  assistance,  were  to  search 
stores  and  houses  for  goods  that  had  not  paid  duty,  or  the  importa- 
tion of  which  was  prohibited.    British  vessels  of  war  on  the  coast 


*  Kalm,  a  Swedish  traveler  who  visited  America  in  1754,  detected  the  feel- 
ing of  the  colonists  in  their  conversation,  and  wrote  that  nothing  but  fear  of  the 
French  on  the  northern  border  could  keep  them  in  subjection  to  England. 


62  THE  AMERICAN  GOVERNMENT. 

were  to  lend  them  aid.  The  government  also  began  to  levy  internal 
taxes.  After  1762  this  was  the  royal  programme,  sometimes  changed 
in  details  but  never  abandoned :  The  colonies  to  contribute  regu- 
larly to  the  royal  treasury ;  the  colonial  legislatures  not  to  be  asked 
to  vote  supplies,  but  Parliament  to  vote  them  directly;  the  salaries 
of  the  colonial  governors  and  judges  to  be  paid  by  England,  thus 
teaching  them  to  look  to  her  rather  than  to  the  people  whom  they 
governed  for  their  compensation ;  and  a  British  army  to  be  main- 
tained i;i  America  at  colonial  expense. 

119.  No  Taxation  without  Representation. — To  every  one  of 
these  items  but  the  first  the  colonies  were  inflexibly  opposed. 
Especially  was  every  form  of  internal  taxation  by  the  home  govern- 
ment vigorously  resisted,  as  the  history  of  the  stamp  tax,  the  window 
tax,  and  the  tea  tax  shows.  This  resistance  was  not  made  because 
the  taxes  were  unnecessary,  or  because  the  amounts  levied  were 
excessive,  but  because  Parliament  had  no  right  to  impose  them. 
Besides  paying  the  cost  of  their  own  governments,  including  the 
salaries  of  all  officers,  the  colonies  were  still  willing  to  contribute, 
when  called  upon,  to  the  royal  treasury;  but  their  legislatures  alone 
had  the  right  to  vote  the  supplies,  because  in  them  alone  were  they 
represented.  The  principle  involved  was  expressed  in  the  battle 
cry :     "  No  Taxation  without  Representation." 

120.  Mr.  Burke  on  the  Causes  of  American  Discontent. — The 
great  statesman  Burke  saw  clearly  the  movements  of  events  in 
America.  In  explaining  these  movements  to  the  House  of  Com- 
mons, in  177s,  he  traced  the  progress  of  events.  He  declared  that 
from  six  sources — descent,  form  of  government,  religion  in  the 
North  and  manners  in  the  South,  education,  and  the  remoteness  of 
the  colonies — a  fierce  spirit  of  liberty  had  grown  up.  It  had  grown 
with  the  growth  of  the  people  and  increased  with  the  increase  of 
their  wealth ;  a  spirit  that,  unhappily,  meeting  with  an  exercise  of 
power  in  England  which  was  not  reconcilable  to  the  colonists'  ideas 
of  liberty,  had  kindled  a  flame  that  was  ready  to  consume  the  mother 
country.  He  connected  the  resistance  of  the  Americans  to  British 
taxation  with  the  old  English  struggles  for  freedom.  He  said  those 
struggles,  from  the  earliest  times,  were  chiefly  upon  the  question  of 
taxing.  It  had  been  held,  from  the  very  nature  of  the  House  of 
Commons,  as  the  immediate  representative  of  the  people,  that  the 
power  to  tax  resided  in  that  body.  It  was  a  fundamental  principle 
that,  in  all  monarchies,  the  people  must  directly  or  indirectly  grant 
their  own  money,  or  no  shadow  of  liberty  could  exist.  Said  the 
orator :  "  The  colonies  draw  from  you,  as  with  their  life-blood, 
these  ideas  and  principles.  Their  love  of  liberty,  as  with  you,  fixed 
and  attached  on  this  specific  point  of  taxing.  Liberty  might  be 
safe,  or  might  b<.  endangered,  in  twenty  other  particulars,  without 


AMERICA  INDEPENDENT.  63 

their  being  much  pleased  or  alarmed.    Here  they  felt  its  pulse;  and 
as  they  found  that  beat,  they  thought  themselves  sick  or  sound." 

121.  English  and  American  Liberty. — The  connection  of  the 
two  countries  was  closer  than  has  yet  appeared.  While  nearly  all 
Englishmen  held  that  Parliament  was  supreme  over  the  colonies, 
and  so  had  the  power  of  taxation,  many,  as  the  more  liberal  and 
progressive  Whigs,  doubted  or  denied  the  wisdom  of  its  exercise. 
These  men  conducted  a  steady  but  ineffectual  resistance  to  the 
American  policy  of  the  king  and  ministry.  They  sometimes  called 
Washington's  army  "  our  army,"  and  spoke  of  the  American  cause 
as  "  the  cause  of  liberty."  The  names  of  the  two  English  political 
parties  also  became  the  names  of  the  two  divisions  into  which  the 
American  people  were  divided,  Whigs  and  Tories.  While  the  war 
was  going  on,  the  king  was  also  seeking  to  carry  out  his  ideas  of 
prerogative  in  England.  The  men  who  opposed  his  American  policy 
also  opposed  his  home  policy.  For  a  time,  these  men  were  in  a 
feeble  minority,  and  the  king  had  his  way ;  but  the  day  of  their 
triumph  and  of  the  king's  defeat  came  with  the  success  of  the 
American  arms.  Not  only  was  America  free,  but  the  failure  of  ar- 
bitrary government  in  America  involved  its  failure  in  England.  At 
the  close  of  the  war,  forces  began  to  act  that,  after  still  further  de- 
lays, reformed  the  House  of  Commons  and  enlarged  its  powers,  and 
limited  still  more  the  power  of  the  king  and  the  House  of  Lords. 
Thus  English  liberty,  long  arrested  in  its  course,  once  more  moved 
onward.  Says  Mr.  Fiske :  "  The  system  which  George  III.  had 
sought  to  fasten  upon  America,  in  order  that  he  might  fasten  it 
upon  England,  was  shaken  off  by  the  good  people  of  both  countries 
at  almost  the  same  moment  of  time." 

'r  '?  ^^,  ^r  ^^  3„|    ^%  10, 3  / 


CHAPTER  IV. 

THE  FORMATION  OF  THE  UNION. 

References. 

I.  Histories  of  the  United  States. — Bancroft,  Vol.  IV.  ("The 
American  Revolution,"  Epoch  3)  ;  Hildreth,  Vol.  III. ;  Winsor,  Vol. 
VI.,  Chap.  III.;  Pitkin,  Chaps.  VIII.-X. ;  Johnston,  The  U.  S., 
III.,  IV.;  Hart,  Chaps.  III.,  IV. 

II.  Special  Works,  Articles,  Etc. — Goodloe,  Johnston,  Story, 
and  Wilson,  last  references ;  Curtis,  Book  I.,  Chaps.  II.-VI. ;  Froth- 
ingham.  Chaps.  IX.,  XI. ;  Bryce,  Part  I.,  Chaps.  I.,  II. ;  Small,  Be- 
ginnings of  American  Nationality  (/.  H.  U.  Studies,  Eighth  Series, 
I.,  II.). 

122.  Relations  of  the  Colonies. — At  first  the  colonies 
were  wholly  separate  and  distinct  settlements,  or  groups 
of  settlements,  on  the  edge  of  a  vast  continent,  often 
widely  separated.  But  some  bonds  of  union  existed 
from  the  beginning.  The  colonists  were  mainly  of  Eng- 
lish blood;  they  had  the  same  national  history,  the  same 
political  and  civil  institutions,  the  same  general  customs, 
the  same  language  and  literature.  They  had  a  common 
citizenship,  since  the  inhabitants  of  any  one  colony  enjoyed 
all  the  rights  and  privileges  of  the  inhabitants  of  any  other. 
They  had  common  enemies  and  friends,  common  dangers, 
objects,  and  hopes.  There  was  more  or  less  emigration 
from  one  colony  to  another,  which  time  and  social  and  busi- 
ness connections  multiplied.  The  name  they  bore  marked 
them  off  from  all  the  world  as  one  society  or  people.  The 
Declaration  of  Independence  spoke  of  their  constitution. 
So,  while  their  only  governmental  bond  was  their  common 
dependence  upon  England,  they  still  formed  a  moral  and 
social  unity  that  continued  to  strengthen  until  events  created 

a  political  unity. 

(64)  • 


THE  FORMATION  OF  THE  UNION.  65 

123.  The  United  States. — The  Declaration  of  Independ- 
ence must  be  considered  under  two  aspects. 

1.  It  changed  the  colonies  into  States  by  severing  the 
bonds  that  bound  them  to  England.  On  the  one  side  of 
July  4,  1776,  they  are  British  colonies;  on  the  other,  free 
and  independent  American  States. 

2.  It  created  the  political  unity,  or  the  state,  since 
known  as  the  United  States  of  America.  While  sever- 
ing their  connections  with  the  other  parts  of  the  British 
Empire,  this  act  materially  strengthened  those  connections 
that  constituted  the  colonies  one  people.  American  inde- 
pendence was  a  concerted  movement.  The  States  used  the 
Continental  Congress  to  effect  this  purpose,  not  their  local 
assemblies  or  congresses.  There  was  one  Declaration  of 
Independence,  not  thirteen  declarations.  They  did  not  act 
singly,  but  together.  They  did  not  become  the  nations  of 
Massachusetts,  Virginia,  etc.,  but  the  United  States  of 
America.  In  this  capacity  they  adopted  the  army  at  Bos- 
ton, appointed  Washington  commander-in-chief,  waged  war, 
renounced  their  allegiance  to  England,  and  took  their  sep- 
arate station  among  the  nations  of  the  earth. 

Thus,  the  States  as  free  commonwealths  and  the  Union 
originated  in  the  same  act.  Independence  did  not  destroy 
dual  government.  Each  State  continued  a  society  in  itself, 
and  also  a  part  of  a  larger  society.  The  American  Union 
had  come  in  the  room  of  the  king  and  Parliament.  But 
the  States  were  necessarily  reorganized  and  adjusted  to  the 
new  order  of  things. 

124.  The  Colonies  Reorganized  as  States. — Independ- 
ence "destroyed  the  old  legal  foundation  of  the  States, 
and  made  it  necessary  to  provide  a  new  one.  A  people  so 
tenacious  of  political  habits  as  the  Americans  of  that  day, 
and  so  committed  to  government  by  law,  could  not  rest 
until  they  had  adjusted  their  State  governments  to  the  new 
state  of  affairs.  In  fact,  they  did  not  wait  for  the  formal 
declaration  of  independence  before  acting.  As  early  as 
May,  1775,  colonies  began  to  apply  to  Congress  for  advice 


66  THE  AMERICAN  GOVERNMENT. 

to  guide  them  in  the  emergency  that  had  arisen.  Besides 
earlier  and  partial  replies,  Congress  adopted,  May  lo,  1776, 
the  following  resolution,  with  an  appropriate  preamble : 

"  Resolved,  that  it  be  recommended  to  the  respective 
assemblies  and  conventions  of  the  United  Colonies,  where  no 
government  sufficient  to  the  exigencies  of  their  affairs  has 
been  hitherto  established,  to  adopt  such  government  as 
shall,  in  the  opinion  of  the  representatives  of  the  people, 
best  conduce  to  the  happiness  and  safety  of  their  constitu- 
ents in  particular  and  America  in  general." 

All  the  colonies  but  two  acted  in  conformity  with  this 
recommendation.  Their  action  took  the  form  of  State 
constitutions,  adopted  and  put  in  force  in  the  years  1776- 
1780. 

125.  The  First  Constitutions. — These  constitutions 
were  the  first  instruments  of  the  kind  ever  made.  Some  of 
them,  framed  in  haste,  were  very  brief  and  imperfect,  and 
were  soon  laid  aside;  others  were  well  matured,  and  that 
of  Massachusetts,  variously  amended,  is  still  in  force.  The 
first  constitutions  were  drawn  up  by  State  conventions  or 
congresses,  some  of  which  were  composed  of  members  of 
the  Assemblies,  and  some  especially  constituted  for  that  pur- 
pose. The  General  Court  of  Connecticut  formally  declared, 
in  1776,  that  the  charter  granted  by  King  Charles  II.  in 
1662  should  be  and  remain  the  civil  constitution  of  the 
State.  Rhode  Island  also  continued  her  charter,  but  without 
any  formal  declaration  to  that  effect.  Connecticut  adopted 
her  first  constitution  in  1818,  and  Rhode  Island  hers  in 
1842. 

126.  Source  of  the  New  Constitutions. — The  source  of 
the  new  constitutions  was  the  popular  will.  From  that  day 
to  this,  supreme  political  power  in  the  United  States,  both  as 
a  theory  and  as  a  fact,  has  resided  in  the  people.  Only  the 
constitution  of  Massachusetts,  of  those  first  formed,  was 
submitted  to  the  popular  vote  for  ratification ;  but  the  as- 
semblies, conventions,  and  congresses  that  ordained  the 
others  did  so  as  the  representatives  of  the  people.     The 


THE  FORMATION  OF  THE  UNION.  dy 

Virginia  preamble  ran :  "  We,  the  delegates  and  representa- 
tives of  the  good  people  of  Virginia,  do,"  etc.  That  of 
Massachusetts :    "  We,  the  people  of  Massachusetts,"  etc. 

127.  Models  of  the  New  Constitutions. — But  where  did 
the  States  find  their  models?  The  State  constitutions, 
as  documents,  were  no  doubt  immediately  suggested  by  the 
colonial  charters.  In  important  respects  they  differed 
from  the  charters:  the  charters  emanated  from  the  king, 
the  constitutions  from  the  people;  the  charters  were  grants 
of  rights  and  powers  to  the  people,  the  constitutions  were 
acts  of  the  people  organizing  government.  Both  the  con- 
stitutions and  the  charters  had  a  certain  likeness  to  the  old 
English  charters,  as  Magna  Charta  and  the  Bill  of  Rights ; 
also  the  constitutions  made  or  proposed  for  England  in 
the  time  of  the  Commonwealth  may  have  been  in  the  minds 
of  the  statesmen  of  1776- 1787.  Mention  may  be  made  of 
the  Instrument  of  Government  that  created  the  Protectorate 
in  1653.' 

128.  The  Transition  from  Colony  to  State. — The  Colo- 
nial governments  were  not  destroyed,  but  were  rested 
on  a  new  foundation,  adjusted  to  a  new  political  system, 
and  in  all  essential  features  continued  under  a  new  name. 
The  division  into  three  branches,  the  bicameral  legisla- 
ture, the  common  parliamentary  law,  the  former  local 
institutions,  and  all  the  old  safeguards  of  civil  liberty 
were  duly  perpetuated.     As  one  has  said :     "  The  revolu- 

*  Commenting  on  the  similarity  of  the  frame  of  government  in  the  republics 
that  make  up  the  United  States, — "a  similarity  which  appears  the  more  remark- 
able when  we  remember  that  each  of  the  republics  is  independent  and  self-de- 
termined as  respects  its  frame  of  government," — Mr.  Bryce  observes  that  it  "  is 
due  to  the  common  source  whence  the  governments  flow.  They  are  all  copies, 
some  immediate,  some  mediate,  of  ancient  English  institutions,  viz.,  chartered 
self-governing  corporations,  which,  under  the  influence  of  English  habits,  and 
with  the  precedent  of  the  English  parliamentary  system  before  their  eyes,  devel- 
oped into  governments  resembling  that  of  England  in  the  eighteenth  century. 
Each  of  the  thirteen  colonies  had  up  to  1776  been  regulated  by  a  charter  from 
the  British  crown,  which,  according  to  the  best  and  oldest  of  all  English  tradi- 
tions, allowed  it  the  practical  management  of  its  own  affairs.  The  charter  con- 
tained a  sort  of  skeleton  constitution,  which  usage  had  clothed  with  nerves, 
muscles,  and  sinews,  till  it  became  a  complete  and  symmetrical  working  system 
of  free  government." — The  American  Commonwealth,  Vol.  I.,  p.  438.  (1888.) 


68  THE  AMERICAN  GOVERNMENT. 

tion  was  not  a  war  against  these  things ;  it  was  a  war  for 
these  things — the  common  property  of  the  Anglican  race." 
The  States,  so  far  from  being  merged  into  one  consoUdated 
government,  became  more  vigorous  than  ever.  They  re- 
tained their  old  powers,  and  acquired  still  others  that  had 
been  exercised  or  claimed  by  the  home  government. 
They  had  exclusive  control  of  taxation,  commerce,  and 
navigation.  Save  the  important  powers  delegated  to  the 
Union,  all  governmental  powers  belonged  to  them.  More- 
over, these  reorganized  governments  were  constituted,  and 
more  or  less  fully  described,  in  written  constitutions  that 
rested  directly  upon  the  popular  authority.  Thus,  the  colo- 
nial governments  were  not  only  continued  but  strengthened. 

Many  of  the  new  constitutions  referred  to  the  recom- 
mendation of  the  National  Congress ;  some  of  them 
distinctly  recognized  that  body.  Massachusetts,  for  exam- 
ple, in  the  oaths  prescribed  to  be  taken  by  officers  under  the 
State,  excepted  "the  authority  .and  power  which  is  or 
may  be  vested  by  their  constituents  in  the  Congress  of  the 
United  States  "  from  the  authorities  and  powers  that  such 
officers  were  required  to  forswear. 

129.  The  Union. — The  new  strength  and  dignity  that 
were  given  to  the  States  were  far  from  being  the  most 
prominent  result  of  independence.  This  result  was  rather 
the  Union,  or  the  American  state,  which  now  took  its  sep- 
arate place  among  the  powers  of  the  earth.  An  intelligent 
foreigner,  visiting  the  country  both  before  and  after  the  war 
began,  and  noting  the  changes  that  took  place,  would  have 
remarked  the  Continental  Congress  above  all  other  things. 
But,  notwithstanding  its  prominence,  the  Union  was  less 
fully  organized  than  the  States,  A  written  constitution 
was  not  for  some  time  adopted ;  and  the  unwritten  one  that 
was  tacitly  agreed  to,  and  that  soon  became  customary, 
left  the  General  Government  weak  and  inefficient.  Both 
results  were  perfectly  natural.  In  the  case  of  the  States, 
all  that  was  necessary  was  formal  reorganization ;  while  in 
the  case  of  the  Union,  a  new  government  had  to  be  created. 


THE  FORMATION  OF  THE  UNION.  69 

What  the  ultimate  nature  of  the  Union  would  be,  had  been 
by  no  means  decided ;  but  a  union  had  been  effected,  a 
General  Government  had  been  established,  and  a  provi- 
sional distribution  of  powers  between  this  government  and 
the  States  had  been  made.  There  were  still  two  loyalties 
and  two  patriotisms  as  before,  and  both  were  American. 

130.  The  American  State. — Before  its  birth  the  largest 
features  of  the  American  state  were  determined.  These 
features  were  now  partly  formulated  in  written  State  con- 
stitutions, and  partly  based  on  common  consent  or  an  un- 
written national  constitution.  The  State  side  of  the  system 
was  much  better  developed  than  the  National  side.  Since 
that  day  many  important  changes  have  been  made  in  the 
constitution  of  the  American  state;  and  yet  the  States  com- 
prising the  Union  have  never  changed  their  essential  nature ; 
they  have  never  possessed  national  sovereignty,  and  have 
never  been  states  in  the  sense  that  England  and  France  are 
states,  or  that  the  Union  is  a  state. 

The  steps  leading  to  the  formation  of  the  American 
Union  must  now  be  traced  out  more  carefully. 

131.  The  Consolidation  of  Colonies. — The  original  Connecticut 
was  formed  by  the  union,  in  1639,  of  the  towns  of  Hartford,  Weth- 
ersfield,  and  Windsor.  The  colony  of  New  Haven  originated  about 
the  same  time  in  the  union  of  the  towns  on  the  Sound,  the  principal 
of  which  was  New  Haven.  Furthermore,  in  1662,  the  two  colonies 
were  merged  in  the  one  colony  of  Connecticut.  Rhode  Island  had  its 
origin  in  the  union  of  the  various  plantations  on  Narragansett  Bay. 
Plymouth  was  merged  in  Massachusetts  Bay  in  1691.  Thus,  the  col- 
onists had  frequent  examples  of  partial  unions  in  their  own  history. 
Nor  were  examples  of  general  unions  of  a  certain  sort  lacking. 

132.  The  United  Colonies  of  New  England. — In  1643  the  three 
principal  New  England  colonies  entered  into  a  league  that  is  some- 
times known  by  the  above  name,  and  sometimes  by  the  name  of  the 
New  England  Confederation.  This  league  was  called  into  being  by 
common  dangers  to  which  the  three  colonies  were  exposed  from  the 
Indians  and  the  Dutch;  it  dealt  with  such  subjects  as  war,  peace, 
Indian  aflfairs,  and  intercolonial  roads.  For  a  time  it  played  an  im- 
portant part  in  New  England  history ;  then  became  weak,  and  in 
1684  ceased  to  exist. 

133.  Penn's  Plan  of  Union. — In  1697  William  Penn  presented  to 


yo  THE  AMERICAN  GOVERNMENT. 

the  English  Board  of  Trade  a  scheme  for  rendering  the  colonies 
more  useful  to  the  crown  and  to  one  another.  It  provided  for  a 
congress  to  be  composed  of  two  deputies  from  each  colony,  and  to  be 
presided  over  by  a  royal  commissioner,  who  should  also  command 
the  troops  enrolled  to  meet  a  common  enemy.  Nothing  came  of 
this  plan  of  union,  but  it  was  the  first  one  proposed  for  all  the  col- 
onies, and  the  first  document  relating  to  American  affairs  containing 
the  word  congress.  It  also  contained  the  doctrine  of  taxation  for 
which  the  colonies  contended  in  the  next  century. 

134.  Wars  with  the  French  and  Indians. — The  common  dan- 
gers arising  from  these  wars  greatly  stimulated  union  sentiment. 
The  conferences  of  commissioners  and  governors,  the  concurrent  ac- 
tion of  legislatures,  and  the  various  joint  military  expeditions  made 
necessary  by  the  neighborhood  of  common  foes,  were  the  most  prac- 
tical of  lessons  in  the  value  of  union.  The  first  of  these  confer- 
ences, held  in  New  York  in  1690  by  commissioners  appointed  by  the 
New  England  colonies  and  New  York,  amounted  to  but  little ;  still 
it  prepared  the  way  for  others  more  formidable  and  significant.  The 
French  and  Indian  War,  1755-1763,  materially  weakened  the  sense 
of  dependence  upon  England,  and  developed  the  sentiment  of  com- 
mon interest  and  power. 

135.  The  Albany  Congress  of  1754. — In  1754,  when  England 
was  on  the  verge  of  war  with  France,  the  Board  of  Trade  recom- 
mended the  colonies  to  hold  a  congress  to  treat  with  the  Six  Na- 
tions, and  form  a  league  for  their  common  protection.  In  conform- 
ity with  this  recommendation,  commissioners  from  seven  colonies 
met  at  Albany,  June  19,  1754,  forming  the  first  of  the  American 
Congresses.  After  negotiating  the  desired  treaty  with  the  Indians, 
this  body  recommended  to  the  colonies  and  to  the  home  government 
a  Plan  of  Union  that  had  been  drawn  up  by  Dr.  Franklin.  This 
plan  contemplated  a  common  government  administered  by  a  Presi- 
dent-General appointed  by  the  crown,  and  a  Grand  Council  chosen 
by  the  colonial  assemblies.  It  failed  to  receive  the  necessary  rati- 
fication both  in  America  and  in  England,  but  for  very  different  rea- 
sons. The  colonists  thought  it  contained  too  much  of  .the  royal 
prerogative,  while  the  Board  of  Trade  thought  it  too  democratic. 

136.  The  Stamp-Act  Congress. — The  colonial  policy  that  the 
home  government  pursued,  and  particularly  the  enactment  of  the 
Stamp  Act,  brought  together  in  New  York,  October  7,1765,  the  Con- 
gress that  bears  this  name,  consisting  of  twenty-eight  members  from 
nine  different  colonies.  Its  object  was  to  consider  the  state  of  colo- 
nial affairs.  It  adopted  an  address  to  the  king,  a  petition  to  the 
House  of  Commons,  and  a  declaration  of  rights — the  whole  forming 
a   vigorous   statement   of   American   claims,   and   a   strong   protect 


THE   FORMATION   OF  THE   UNION.  71 

against  the  course  of  the  home  government.  No  immediate  impres- 
sion was  produced,  but  soon  afterwards  the  Stamp  Act  was  repealed. 
While  this  Congress  failed  to  shake  the  crown  and  Parliament  in 
their  determination  to  tax  the  colonies,  it  still  tended  strongly  to 
unite  the  colonies  and  to  prepare  the  way  for  future  cooperation. 
It  has  been  called  the  day-star  of  the  American  Union. 

T37.  The  Congress  of  1774. — The  persistence  of  the  British 
Government  in  its  chosen  policy'  led  to  this  Congress.  It  sat  in 
Philadelphia  from  September  5  to  October  26,  1774,  and  contained 
representatives  from  all  the  colonies  but  Georgia.  Its  object  was 
to  advise,  consult,  and  adopt  such  measures  as  would  tend  to  extri- 
cate the  colonies  from  their  difficulties  and  restore  harmony  with  the 
mother  country.  It  adopted  a  declaration  of  rights,  and  addresses  to 
the  king,  to  the  British  people,  to  the  people  of  the  colonies,  and 
to  the  people  of  Canada ;  and  also  recommended  the  colonies  to 
sunder  commercial  relations  with  England  and  her  dependencies, 
unless  their  grievances  should  be  redressed.  It  commended  Massa- 
chusetts for  her  resistance  to  the  objectionable  acts  of  Parliament, 
and  declared  that,  in  case  the  home  government  persisted  in  carry- 
ing these  acts  into  effect,  all  America  ought  to  support  Massachu- 
setts in  her  opposition.  It  also  recommended  the  holding  of  another 
Congress  the  next  year.  The  recommendations  of  this  Congress 
were  of  far-reaching  effect.  John  Adams  called  the  Non-Importa- 
tion Agreement  that  it  drew  up,  which  was  duly  ratified,  "  the 
memorable  League  of  the  Continent  in  1774,  which  first  expressed 
the  sovereign  will  of  a  free  nation  in  America." 

138.  The  Congress  of  1775. — All  the  colonies  were  represented 
in  the  Congress  of  1775.  When  it  met  at  Philadelphia,  May  10,  it 
found  the  state  of  affairs  greatly  changed  from  the  preceding  year. 
The  battle  of  Lexington  had  been  fought,  and  Boston  was  be- 
leaguered by  a  patriot  army.  The  Congress  at  once  assumed  the 
direction  of  the  armed  resistance  to  British  power.  On  June  15,  it 
chose  Washington  General  of  all  the  Continental  forces  raised  or  to 
be  raised  for  the  defense  of  American  liberty,  and  on  the  17th  it  gave 
him  a  commission  in  which  it  called  these  forces  "  the  Army  of  the 
United  States."  Oh  June  22  it  resolved  to  emit  bills  of  credit  for 
the  defense  of  America,  and  pledged  the  Confederated  Colonies  to 
their  redemption.  In  a  word.  Congress  assumed  all  the  powers  of 
sovereignty  deemed  essential  to  the  maintenance  of  the  National 
cause.  It  continued  in  session  until  August  i,  when  it  adjourned 
until  September  5. 

139.  The  Continental  Congress. — The  Congress  of  1774  was 
first  called  the  General  Congress  and  the  Congress  at  Philadelphia. 
In  December  of  that  year  the  Massachusetts  legislature  called  it  the 


72  THE  AMERICAN  GOVERNMENT. 

Continental  Congress,  and  the  country  at  once  adopted  that  name. 
For  a  time  men  recognized  different  Continental  Congresses,  as  the 
first  and  second,  but  this  practice  ceased  as  soon  as  Congress  became 
a  permanent  body.  And  it  was  this  Congress,  recognized  as  the 
grand  council  of  the  new  nation,  that  cut  the  tie  which  bound 
America  to  England. 

140.  The  Union  Established. — This  review  shows  that  an 
American  Union  had  occupied  increasing  attention  on  both  sides  of 
the  Atlantic  for  many  years.  It  shows,  also,  the  presence  of  power- 
ful forces  steadily  working  in  that  direction.  "  The  whole  coast, 
from  Nova  Scotia  to  the  Spanish  possessions  in  Florida,  was  one  in 
all  essential  circumstances ;  and  there  was  only  the  need  of  some 
sudden  shock  to  crystallize  it  into  a  real  political  unity."  This  shock 
came  in  1775,  and  the  elements  crystallized,  although  in  quite  a  dif- 
ferent way  from  any  ■  that  had  been  contemplated.  In  fact,  this 
union  dates  from  the  time  when  Congress  adopted  the  army  that  was 
besieging  Boston,  June  15,  1775,  but  for  formal  purposes  it  is  better 
to  date  from  the  Declaration  of  Independence. 

141.  The  New  Political  Vocabulary. — The  progress  of  political 
events,  especially  toward  the  last,  was  marked  by  the  gradual  intro- 
duction of  a  new  political  vocabulary.  At  first  the  terms  in  current 
use  expressed  only  colonial  conditions  and  relations.  But  by  the 
time  that  we  reach  the  Revolution,  we  find  a  large  family  of  terms 
expressing  quite  another  order  of  ideas,  the  terms,  viz.,  nation, 
national,  union,  confederation,  general  government,  country,  coun- 
tryman, America,  American,  the  United  States,  continent,  con- 
tinental, and  United  America.  This  became  the  current  speech  of 
the  times,  and  no  student  of  political  history  can  mistake  its  sig- 
nificance. 


CHAPTER  V. 

THE  CONTINENTAL  CONGRESS,  177S-1781. 

References. 

I.  General. — Bancroft,  Hildreth,  Winsor,  Johnston,  Frothing- 
ham,  Hart,  Curtis,  Wilson,  last  references;  Green,  H.-IV. 

n.  Special. — Journals  of  the  American  Congress  1774-1788;  Se- 
cret Journals  of  the  American  Congress  1774-1788;  Jameson,  "The 
Predecessor  of  the  Supreme  Court,"  and  Guggenheimer,  "  The  De- 
velopment of  the  Executive  Departments,"  in  Essay^  in  the  Consti- 
tutional History  of  the  U.  S.,  edited  by  J.  F.  Jameson. 

Thorough  study  of  the  period  1 774-1 789  is  impossible  without 
constant  resort  to  the  lives  and  writings  of  the  principal  actors  of  the 
period.  A  general  reference  is  here  made  to  the  volumes  of  the 
American  Statesmen  series  that  fall  within  these  limits,  viz. :  Ham- 
ilton, Jefferson,  Madison,  John  Adams,  John  Marshall,  Samuel 
Adams,  Patrick  Henry,  Gouverneur  Morris,  Washington,  Franklin, 
and  Jay. 

142.  Source  of  its  Powers. — The  Congress  w^as  not  the 
creature  of  law  but  of  revolution.  The  question  whether 
there  should  be  such  a  body  was  never  submitted  directly 
to  the  people,  but  was  rather  decided  by  the  colonial  As- 
semblies, conventions,  and  committees  that  appointed  the 
delegates  who  formed  the  Congress  of  1774.  These  bodies 
acted  as  they  believed  the  people  whom  they  represented 
wished  them  to  act;  while  the  people  gave  the  Congress 
the  most  practical  kind  of  approval  by  carrying  on  for  eight 
years  a  wasting  war  under  its  leadership  and  direction. 
Accordingly,  the  Congress  was  a  National  assembly  called 
into  existence  by  a  national  crisis. 

143.  No  Written  Constitution. — The  powers  and  func- 
tions of  Congress  were  not  defined  in  a  written  constitu- 
tion. This  was  impossible  in  the  nature  of  the  case.  The 
public  will  was  the  measure  as  well  as  the  source  of  its 

(73) 


74  THE  AMERICAN  GOVERNMENT. 

powers,  as  in  the  case  of  other  revolutionary  governments. 
"  It  is  a  maxim  of  political  science,  that,  when  such  a  gov- 
ernment has  been  instituted  for  the  accomplishment  of 
great  purposes  of  public  safety,  its  powers  are  limited  only 
by  the  necessities  of  the  case  out  of  which  they  have  arisen, 
and  of  the  objects  for  which  they  were  to  be  exercised. 
When  the  acts  of  such  a  government  are  acquiesced  in  by 
the  people,  they  are  presumed  to  have  been  ratified  by  the 
people.  To  the  case  of  our  Revolution,  these  principles 
are  strictly  applicable  throughout.  The  Congress  assumed 
at  once  the  exercise  of  all  powers  demanded  by  the  public 
exigency,  and  their  exercise  of  these  powers  was  acquiesced 
in  and  confirmed  by  the  people."^ 

144.  Constitution  of  Congress. — Previous  to  the  Ameri- 
can. Congress;  congresses  had  been  composed  of  the 
representatives  of  independent  states  met  together  to  trans- 
act international  business.  No  purely  national  body,  as  a 
legislature,  had  ever  been  so  called.  As  the  colonies  were 
separate  societies,  and  as  the  business  to  be  done  was  to 
consider  their  common  interests,  they  naturally  adopted  this 
name.  At  first,  the  delegates  were  appointed  by  the  colonial 
Assemblies,  conventions,  or  committees  of  correspondence, 
but  after  the  body  became  permanent  they  were  appointed 
by  the  Assemblies.  Every  State  appointed  as  many  dele- 
gates, and  for  such  time,  as  it  saw  fit.  It  also  fixed  and 
paid  them  their  compensation.  There  was  no  uniformity 
in  the  period  of  service  or  in  pay.  Congress  had  no  limi- 
tation as  to  time,  but  was  a  continuous  body,  although  not 
in  continuous  session.  Fifty-six  members  signed  the  Dec- 
laration of  Independence,  and  that,  in  the  early  days,  was 
about  the  number  commonly  present.  Every  State  had 
one  vote,  and  no  more,  and  this  was  determined  by  a  ma- 
jority of  its  delegates  present. 

145.  The  Powers  of  Congress. — The  powers  exercised 
by  Congress  related  to  the  prosecution  of  the  war  and  to 

i  Curtis,  History  of  the  Constitution,  Vol,  I.,  p.  40. 


THE  CONTINENTAL  CONGRESS,  1775-1781.  75 

certain  other  general  interests.  Congress  controlled  the 
national  army  and  navy  and  managed  Indian  affairs.  It 
created  a  national  currency  and  established  a  general  post 
office.  It  resolved  that  it  would  be  very  dangerous  to  the 
liberties  and  welfare  of  America  if  any  colony  should  sep- 
arately petition  the  king  or  either  House  of  Parliament,  and 
it  accordingly  assumed  the  whole  direction  of  foreign  affairs. 
Congress  also  frequently  recommended  the  States  to  do  cer- 
tain things  that  it  had  not  itself  power  to  do.  In  times  of 
special  emergency,  it  assumed  unusual  authority.  Twice 
it  voted  powers  to  Washington  that  made  him  a  virtual 
dictator.  As  things  once  done  became  precedents,  there 
grew  up  a  customary  or  unwritten  national  constitution. 
For  example,  Congress  adopted,  September  6,  1774,  the 
following  rule  in  relation  to  voting :  "  Resolved,  That  in 
determining  questions  in  this  Congress,  each  colony  or 
province  shall  have  one  vote.  The  Congress  not  being 
possessed  of,  or  at  present  able  to  procure  proper  material 
for  ascertaining  the  importance  of  each  colony."  This 
rule  once  adopted  was  never  changed  until  1787,  and  then 
only  after  a  struggle  that  nearly  broke  up  the  Union. 

146.  The  Articles  of  Confederation. — It  was  clear  to 
the  discerning  from  the  outset  that  the  Union,  if  it  was 
to  be  permanent,  required  some  more  regular  and  stable 
government  than  a  revolutionary  assembly.  For  example, 
Dr.  Franklin,  as  early  as  June  12,  1775,  submitted  to  Con- 
gress a  draft  of  Articles  of  Confederation  and  Perpetual 
Union,  but  no  action  was  taken.  On  June  12,  1776,  the 
same  day  that  it  appointed  the  committee  of  five  to  pre- 
pare a  declaration  of  independence,  Congress  appointed  a 
committee  of  one  from  each  colony  "  to  prepare  and  draft 
the  form  of  a  confederation  to  be  entered  into,"  and  a  month 
later  this  committee  submitted  a  report  in  the  handwriting 
of  its  chairman,  John  Dickinson,  then  a  delegate  from  Del- 
aware. This  report,  variously  amended,  became  the  Ar- 
ticles of  Confederation  adopted  by  Congress,  November  15, 
1777.     But  as  Congress  could  not,  in  such  a  matter,  bind 


76  THE  AMERICAN  GOVERNMENT. 

the  States,  it  sent  the  Articles  to  the  States  with  an  urgent 
recommendation  that  they  promptly  authorize  their  dele- 
gates in  Congress  to  ratify  them.  Some  of  the  States  at 
once  complied,  others  hesitated.  .On  March  i,  1781,  the 
Maryland  delegates  ratified  the  Articles,  being  the  last  to  do 
so.  By  this  act  the  Confederation  of  the  States  was  com- 
pleted. Dr.  Von  Hoist  has  said :  "  Until  the  adoption  of 
the  Articles  of  Confederation  by  all  the  States,  Congress 
continued  a  revolutionary  body,  which  was  recognized  by 
all  the  colonies  as  de  jure  and  de  facto  the  national  govern- 
ment, and  which  as  such  came  into  contact  with  foreign 
powers,  and  entered  into  engagements,  the  binding  force  of 
which  on  the  whole  people  has  never  been  called  in 
question."^ 

*  Constitutional  History  of  the  United  States,  i750-i&33t  p.  S- 


^ 


CHAPTER  VI. 

THE  CONFEDERATION,  1781-1789. 

References. 

I.  General. — Bancroft,  Vol.  VI.  ("  The  Formation  of  the  Ameri- 
can Constitution,"  I.);  Story,  Book  II.,  Chaps.  II.-IV. ;  Hildreth, 
Vol.  III.;  Wijisor,  Vol.  VII.,  Chap.  III.;  Wilson,  T/i^  State,  XL; 
Frothingham,  Chap.  XII. ;  Curtis,  Books  II.,  III. ;  Johnston,  The 
United  States,  V.,  and  "  Confederation,  Articles  of,"  in  Lalor ; 
Cooley,  Principles  of  Constitutional  Law,  Chap.  I.;  Journals  of  Con- 
gress, same  as  in  last  chapter ;  Hart,  Chap.  V. ;  McMaster,  History 
of  the  People  of  the  U.  S.,  Vol.  I.,  Chaps.  I.-III. ;  Schouler,  History 
of  the  U.  S.,  Vol.  I.,  Chap.  I.,  First  Section. 

II.  Special. — ^The  best  account  of  the  financial  phase  of  this 
period,  which  is  in  some  respects  the  most  important  one  of  all,  is 
that  given  by  Sumner,  The  Financier  and  the  Finances  of  the 
American  Revolution. 

147.  Source  of  the  Powers  of  the  Confederation. — The 

Articles  of  Confederation  were  framed  by  Congress  and 
ratified  by  the  State  legislatures.  As  neither  Congress  nor 
the  legislatures  had  been  previously  empowered- to  do  any- 
thing of  the  kind,  these  acts  we're  revolutionary  acts,  and. 
like  the  declaration  of  independence  and  the  war,  rested  at 
last  upon  the  approval  and  support  of  the  people  of  the 
States.  The  Confederation  was  created  by  their  agents, 
and  existed  with  their  approval  and  support. 

148.  Name  and  Nature  of  the  New  Government. — The 
new  constitution  was  entitled,  Articles  of  Confederation  and 
Perpetual  Union  betzueen  the  States.  Article  I.  reads: 
"  The  style  of  this  Confederacy  shall  be,  '  The  United  States 
of  America.'  "  Article  III. :  "  The  said  States  [the  thirteen 
are  all  enumerated  in  the  preamble]  hereby  severally  enter 
into  a  firm  league  of  friendship  with  each  other,  for  their 
common  defense,  the  security  of  their  liberties,  and  their 

(77) 


78  THE  AMERICAN  GOVERNMENT. 

mutual  and  general  welfare,  binding  themselves  to  assist  each 
other  against  all  force  oflfered  to,  or  attacks  made  upon 
them,  or  any  of  them,  on  account  of  religion,  sovereignty, 
trade,  or  any  other  pretense  whatever."  Article  II.  reads: 
"  Each  State  retains  its  sovereignty,  freedom,  and  inde- 
pendence, and  every  power,  jurisdiction,  and  right  which  is 
not  by  this  confederation  expressly  delegated  to  the  United 
States  in  Congress  assembled."  But  this  by  no  means  made 
the  States  full  and  absolute  sovereigns ;  for  the  Articles  pro- 
ceeded to  confirm  the  National  Government  in  the  high 
powers  of  sovereignty  that  it  had  exercised  in  1775  and 
1776,  and  had  continued  to  exercise  down  to  the  day  when 
they  went  into  effect.  Certain  prohibitions  utterly  incon- 
sistent with  the  idea  that  they  were  each  sovereigns,  either 
as  societies  or  governments,  were  also  laid  upon  the  States. 
Still  the  Union  was  a  confederation  or  Staatenbund,  not  a. 
federal  state  or  Bundesstaat. 

149.  The  Confederate  Congress. — The  new  government 
was  a  Congress  that  held  annual  sessions.  Each  State 
sent  not  less  than  two  delegates,  nor  more  than  seven. 
The  legislatures  elected  delegates  to  serve  one  year,  but 
could  recall  them  at  any  time  and  send  others  in  their 
places.  No  man  could  serve  as  a  delegate  more  than  three 
years  out  of  every  six.  Each  State  paid  its  own  delegates. 
Each  State  had  one  vote,  which  was  determined  by  the 
majority  of  its  delegates  present  when  the  vote  was  given. 
If  the  delegates  were  evenly  divided,  the  State  lost  its  vote. 
No  question  except  to  adjourn  could  be  carried  without  a 
majority  of  all  the  States,  and  the  most  important  ques- 
tions, enumerated  in  Article  IX.,  required  the  vote  of  nine 
States.  Congress  could  also  appoint  a  Committee  of  the 
States,  consisting  of  one  from  each  State,  to  exercise  such 
of  its  own  powers  as  Congress  should  commit  to  it,  in  the 
recess  of  that  body,  which,  however,  must  not  continue 
beyond  six  months.  No  man  could  serve  as  president  of 
Congress  more  than  one  year  in  any  three. 

150.  Powers  of  the  Confederation. — The  powers  of  the 


THE  CONFEDERATION,  1781-1789.  79 

Confederation  were  all  expressly  delegated.  The  most  im- 
portant are  these :  the  sole  and  exclusive  power  of  determin- 
ing on  peace  and  war ;  sending  and  receiving  ambassadors ; 
entering  into  treaties  and  alliances;  establishing  rules  gov- 
erning captures  on  land  and  water;  granting  letters  of 
marque  and  reprisal  in  times  of  peace;  appointing  courts 
for  the  trial  of  piracies  and  felonies  on  the  high  seas ;  estab- 
lishing courts  of  final  appeal  in  all  cases  of  captures ;  de- 
ciding, on  appeal,  disputes  between  the  States  concerning 
boundaries  and  jurisdiction;  regulating  the  alloy  and  value 
of  coin  struck  by  Congress,  or  by  the  States ;  fixing  the 
standards  of  weights  and  measures ;  regulating  trade  and 
managing  all  affairs  with  the  Indians,  not  members  of 
States ;  establishing  and  regulating  post  offices  from  State 
to  State;  appointing  all  officers  in  the  land  forces,  above 
regimental  officers,  and  all  naval  officers  in  the  national 
service,  and  commissioning  both  classes. 

151.  Commands  to  the  States. — The  States  should  send 
delegates  to  Congress  and  maintain  them.  They  should 
contribute  money  to  the  national  treasury  and  men  to  the 
national  army,  as  Congress  should  apportion  to  them  the 
one  or  the  other  according  to  the  prescribed  rules. 
No  State,  without  the  consent  of  Congress,  should  hold 
any  diplomatic  intercourse  with  foreign  powers ;  or  enter 
into  any  alliance  with  any  other  State  without  such  con- 
sent; or  lay  any  impost  or  duty  interfermg  with  the  stipu- 
lations of  any  treaty  entered  into  by  Congress  with  a  for- 
eign power;  or  keep  vessels  of  war  or  troops  in  time  of 
peace  except  such  as  Congress  should  approve;  or  engage 
in  war  unless  actually  invaded ;  or  issue  letters  of  marque 
or  reprisal  except  in  case  of  a  power  against  which  Con- 
gress had  already  declared  war.  Every  State  should  abide 
by  the  determinations  of  Congress  on  all  delegated  ques- 
tions. The  Articles  of  Confederation  should  be  observed 
,by  every  State,  and  the  Union  should  be  perpetual.  But 
no  alteration  in  the  Articles  should  be  made  unless  such 
alteration  should  be  agreed  to  in  a  Congress  of  the  United 


8o  THE  AMERICAN  GOVERNMENT. 

States,  and  be  afterwards  confirmed  by  the  legislatures  of 
every  State. 

152.  The  Continental  and  Confederate  Governments. 

—  The  powers  delegated  to  the  new  Congress  were  much 
the  same  that  the  old  one  had  exercised ;  while  the  prohi- 
bitions on  the  States,  and  the  commands  to  them,  had 
already  been  practically  fixed  by  common  consent.  The 
customary  constitution  that  controlled  the  Continental  Con- 
gress and  the  Articles  of  Confederation  were  developed 
at  the  same  time,  and  were  in  substance  the  same  thing. 
The  only  practical  difference  between  the  two  governments 
was  the  lack  of  a  written  constitution  in  the  first  case,  and 
its  presence  in  the  second.  It  is  not  surprising,  therefore, 
that  some  writers  should  consider  the  Articles  a  mere  inci- 
dent, and  so  extend  the  Continental  period  to  1789.  So 
we  may  well  treat  the  two  Congresses  as  one  government. 

153.  Organization. — The  government  was  extremely 
simple.  It  was  a  legislature  consisting  of  one  house,  but 
it  also  exercised  some  executive  and  judicial  powers.  The 
President  of  Congress,  sometimes  called  simply  the  Presi- 
dent, while  in  no  sense  an  executive  head  of  the  govern- 
ment, was  still  an  officer  of  much  dignity ;  he  received  a 
compensation  from  the  national  treasury,  and  gave  his  title 
to  the  present  chief  magistrate  of  the  republic. 

154.  Executive  Departments. — Congress  being  sud- 
denly called  upon  to  carry  on  an  extensive  war,  was  com- 
pelled to  create  administrative  machinery.  There  were, 
for  a  time,  many  Congressional  committees  charged  with 
administrative  duties.  There  were  committees  to  purchase 
clothing  for  the  army,  to  promote  the  manufacture  of  mus- 
kets and  bayonets,  to  collect  salt,  to  collect  lead,  etc.,  as 
well  as  committees  to  consider  the  state  of  trade,  to  draft 
resolutions  and  addresses,  and  to  report  a  device  for  a  na- 
tional seal.  But  as  it  became  apparent  that  efficient  ad- 
ministration could  not  be  secured  by  this  means,  there 
began  to  appear  the  outlines  of  executive  departments. 
In  1775  three  departments  of  Indian  affairs,  to  be  adminis- 


^     THE  CONFEDERATION,  1 781-1789.  81 

tered  by  commissioners  appointed  by  Congress,  were  cre- 
ated. The  same  year  Dr.  Franklin  was  appointed  Post- 
master-General. Other  departments  also  appeared  that  will 
be  mentioned  in  another  place. 

155.  Defects  of  the  Government. — The  defects  of  the 
government  of  the  Confederation  arose  in  part  from  its 
organization.  Its  legislative,  executive,  and  judicial  powers 
were  all  united  in  one  body.  But  the  most  serious  defect 
was  the  feeble  powers  with  which  Congress  was  clothed. 
It  acted  upon  States,  not  upon  individuals ;  and  States  it 
could  not  coerce.  It  could  issue  its  requisition?  for  men 
and  money  in  accordance  with  the  Articles ;  but  if  the 
States  did  not  raise  the  men  and  money,  the  army  was  not 
recruited  and  the  treasury  was  left  empty.  It  had  no  power 
to  regulate  commerce  with  foreign  nations  or  between  the 
States.  It  could  negotiate  treaties,  but  had  no  power  to 
enforce  them  either  at  home  or  abroad.  Nine  States  were 
necessary  to  carry  the  most  important  measures ;  and  as 
every  State  was  necessary  to  make  even  the  slightest  change 
in  the  Articles,  to  strengthen  the  government  was  found  a 
practical  impossibility.  The  war  over,  there  began  what 
has  been  appropriately  called  the  critical  period  in  Ameri- 
can history. 

156.  The  Question  of  17*86. — Some  men  regarded  the 
failure  of  the  impost  proposed  in  1785  as  the  collapse  of 
the  Confederation.  Mr.  Justice  Story,  describing  the  out- 
look then  presented  to  the  country,  says :  "  The  Confed- 
eration had  at  last  totally  failed  as  an  effectual  instrument 
of  government ; "  "  its  glory  was  departed,  and  its  days  of 
labor  done ;  "  "  it  stood  the  shadow  of  a  mighty  name ;  " 
"  it  was  seen  only  as  a  decayed  monument  of  the  past,  in- 
capable of  any  enduring  record ;  "  "  the  steps  of  its  decline 
were  numbered  and  finished ; "  and  "  it  was  now  passing  to 
the  very  door  of  that  common  sepulcher  of  the  dead,  whose 
inscription  is  Nulla  vestigia  retrorsum."'^  A  very  plain 
question  was  now  presented  to  the  American  people.    This 

*  Commentaries  on  the  Constitution,  §  270. 

AM.  GOV. — 6 


82  THE  AMERICAN  GOVERNMENT. 

was  whether  they  would  strengthen  the  Union,  or  would 
drift  into  disunion,  anarchy,  and  war.  Happily  the  defects 
of  the  Confederation  had  at  last  taught  their  lesson. 

But  before  we  take  the  next  step  forward,  we  may  re- 
view this  period  more  thoroughly. 

157.  Weakness  in  the  War. — "  Tradition  has  fastened  upon 
the  sufferings  at  Valley  Forge ;  but  the  sufferings  of  the  next  two  or 
three  winters  were  not  less,  and  the  distress  and  nakedness  of  the 
Southern  army  up  to  the  end  of  the  war  were  shocking  in  every 
point  of  view.  In  1780  the  French  were  obliged  to  help  the  Ameri- 
can army  with  provisions.  The  point  of  this  for  our  present  pur- 
pose, howe,ver,  lies  in  the  fact  that  there  was  plenty  all  about,  and 
the  people  were  not  paying  any  war-taxes  at  all.  There  was  no  gen- 
eral distress  or  poverty.  Except  at  the  seat  of  war  for  the  time 
being,  the  war  did  not  press  on  the  people  in  any  way.  The  whole 
trouble  lay  in  the  lack  of  organization  by  which  to  bring  the  re- 
sources which  existed  in  ample  abundance  into  application  to  the 
necessities."  ^ 

158.  State  of  the  Government. — When  the  pressure  of  common 
dangers  was  removed,  the  state  of  the  government  became  humiliat- 
ing in  the  extreme.  In  October  and  November,  1781,  Congress 
called  upon  the  States  for  $8,000,000;  up  to  January,  1783,  only  half 
a  million  had  been  received.  Between  1782  and  1786  it  called  for 
$6,000,000;  it  received  only  $1,000,000.  At  last  the  national  income 
dwindled  to  one  or  two  hundred  thousand  dollars  a  year,  and  con- 
tributions were  limited  to  New  York  and  Pennsylvania  alone.  As 
a  consequence,  Congress  could  neither  pay  the  large  foreign  debt 
that  it  had  created,  principal  and  interest,  nor  the  soldiers  on  the 
disbanding  of  the  army,  save  in  certificates  of  indebtedness.  The 
Continental  currency  ceased  to  have  assignable  value.  Congress 
could  not  compel  England  to  observe  the  terms  of  the  treaty  of 
peace,  or,  what  was  worse,  keep  them  itself.  Hence  it  was  not 
strange  that  it  could  not  negotiate  commercial  treaties  with  foreign 
nations  that  would  have  been  of  the  greatest  benefit  to  the  country.' 


*  Sumner,  Alexander  Hamilton,  pp.  87,  88. 

*  The  hopeless  financial  breakdown  Fisher  Ames  once  described  in  a  sen- 
tence: "  The  government  of  a  great  nation  had  barely  revenue  enough  to  buy 
stationery  for  its  clerks,  or  to  pay  the  salary  of  the  door-keeper."  A  contempo- 
rary writer  quoted  by  Story  gives  this  fuller  description :  "  The  United  States 
in  Congress  have  exclusive  power  for  the  following  purposes,  without  being  able 
to  execute  one  of  them.  They  may  make  and  conclude  treaties;  but  can  only 
recommend  the  observance  of  them.  They  may  appoint  ambassadors;  but  can- 
not defray  even  the  expenses  of  their  tables.  They  may  borrow  money  in  their 
own  name  on  the  faith  of  the  Union;  but  cannot  pay  a  dollar.    They  may  coin 


THE  CONFEDERATION,  1781-1789.  83 

159.  Dissolution  of  Congress  Threatened. — At  first  the  Conti- 
nental Congress  commanded  great  respect  both  at  home  and  abroad. 
The  States  were  all  represented,  and  by  their  ablest  men.  But  such 
did  not  long  continue  to  be  the  case.  Congress  fell  off  in  numbers 
and  in  character.  This  decline  continued  to  increase  as  the  difficul- 
ties of  the  government  increased,  and  as  the  States  became  more  and 
more  absorbed  in  their  own  affairs.  Sometimes  States  did  not  even 
take  the  trouble  to  elect  delegates.  Sometimes  the  delegates  who 
were  appointed  did  not  attend,  or  attended  but  a  small  part  of  the 
time.  Frequently  not  enough  States  were  present  to  transact  busi- 
ness. The  whole  country  desired  peace  above  all  -things,  but,  for 
want  of  a  quorum,  it  was  not  until  January  14,  1784,  that  the  treaty 
of  peace,  signed  September  3  of  the  previous  year,  could  be  ratified, 
and  then  there  were  but  twenty-three  members  present.  A  single 
negative  vote  given  by  Connecticut,  Rhode  Island,  Delaware,  Mary- 
land, North  Carolina,  or  South  Carolina  would  have  defeated  the 
ratification  of  the  treaty.  Only  eighteen  delegates  representing 
eight  States  were  present  when  the  Ordinance  of  1787  was  passed. 
It  was  with  the  greatest  difficulty  that  delegates  enough  could  be 
brought  together  in  1788  to  set  in  motion  the  government  created  by 
the  Constitution.  And  finally,  not  enough  members  attended  for- 
mally to  adjourn  when  the  end  came,  and  the  Old  Congress  fell  to 
pieces  and  left  the  country  without  a  government  from  October, 
1788,  to  April,  1789. 

160.  State  of  the  Country. — The  state  of  the  country  was  no 
better  than  the  state  of  the  government.  The  State  governments 
were  efficient,  but  they  could  not  take  the  place  of  a  National  gov- 
ernment. Political  confusion,  industrial  derangement,  commercial 
distress,  and  social  disorder  abounded.  The  mass  of  private  debts 
was  very  great.  In  some  States,  and  notably  in  Massachusetts,  men 
who  felt  the  crushing  weight  of  debt — some  of  whom  had  done 
faithful  service  as  soldiers  in  the  war — joined  with  the  reckless  and 
disaffected  classes  in  threatening  the  peace  of  society,  and  even  in 
promoting  rebellion.  The  States  regulated  commerce  regardless  of 
the  interests  of  neighboring  States  and  of  the  country  as  a  whole. 
Goods  shipped  from  one  State  to  another  were  subject  to  duty. 
State  discriminated  against  State.  There  was  great  scarcity  of 
money ;  in  some  States  it  disappeared  from  circulation  altogether, 
while  commodities,  as  whisky  and  tobacco,  became  the  medium  of 
exchange.  And  then,  as  though  the  Continental  money  had  not 
caused  sufficient  distress,  several  States  fell  to  issuing  irredeemable 

money,  but  they  cannot  purchase  an  ounce  of  bullion.  They  may  make  war  and 
determine  what  number  of  troops  are  necessary,  but  cannot  raise  a  single  soldier. 
In  short,  they  may  declare  everything,  but  do  nothing." — Commentaries,  i  246. 


84  THE  AMERICAN  GOVERNMENT. 

paper  currency.  With  all  the  rest,  several  States  had  serious  dis- 
agreements as  to  boundaries  and  territorial  claims ;  there  was  a 
sharp  issue  as  to  the  disposition  to  be  made  of  the  Western  lands ; 
while  the  people  beyond  the  Alleghany  Mountains  threatened  to  cut 
loose  from  the  Union,  and  either  attach  themselves  to  Spain  or 
create  a  new  nation  in  the  Mississippi  valley.*  The  farther  men  got 
away  from  the  war,  the  weaker  the  government  became,  and  the 
more  distressful  the  state  of  the  country. 

i6i.  Causes  of  the  Situation. — Wise  statesmen  did  not  differ  as 
to  the  causes  of  the  existing  state  of  affairs,  or  as  to  the  needed  rem- 
edy. The  radical  vice  of  the  Confederation,  Hamilton  said,  "  was 
the  principle  of  legislation  for  States  as  governments  in  their  cor- 
porate or  collective  capacities,  and  as  contra-distinguished  from  the 
individuals  of  whom  they  consist."  Washington  said :  "  It  is  indis- 
pensable to  the  happiness  of  the  individual  States,  that  there  should 
be  lodged  somewhere  a  superior  power  to  regulate  and  govern  the 
general  concerns  of  the  Confederated  Republic,  without  which  the 
Union  cannot  be  of  any  duration."  To  a  correspondent  who  tirged 
the  use  of  "  influence  "  to  check  the  disorders  in  Massachusetts  that 
led  to  Shays's  rebellion,  he  wrote :  "  Influence  is  not  government. 
Let  us  have  a  government  by  which  our  lives,  liberties,  and  proper- 
ties will  be  secured,  or  let  us  know  the  worst." 

162.  Attempts  to  Strengthen  the  Government. — In  1781,  be- 
fore the  Articles  went  into  operation.  Congress  asked  the  States  for 
power  to  levy  a  five  per  cent,  ad  valorem  duty  on  imports.  Rhode 
Island  refused  outright,  and  Virginia  withdrew  the  consent  that  she 
had  at  first  given.  In  1784  Congress  asked  the  States  for  power  to 
prohibit,  for  fifteen  years,  the  entrance  ijito  the  country  of  vessels 
belonging  to  a  foreign  country  not  having  a  commercial  treaty  with 
the  United  States.  Ten  States  gave  the  power  conditionally,  and 
three  refused  altogether.  In  1785  Congress  asked  for  a  grant  of 
power  to  levy  duties  on  imports  for  twenty-five  years,  the  States 
themselves  to  appoint  the  revenue  officers,  who  should  be  account- 
able to  Congress.  All  the  States  but  Rhode  Island  formally  com- 
plied, but  New  York  did  so  on  conditions  equivalent  to  a  refusal, 
and  so  the  plan  was  defeated.  As  Von  Hoist  tells  us,  "  Congress 
was  viewed  in  the  light  of  a  foreign  power,  spite  of  the  fact  that  it 
was  composed  of  delegates  from  the  body  of  the  people." 

163.  Causes  of  the  Failures. — The  ultimate  causes  of  the  de- 
fects of  the  government  and  of  the  failures  to  remedy  them,  lay  in 
the  current  sentiments  and  habits,  ignorance  and  passions,  of  the 
people.    They  were  slow  to  see  the  sources  of  the  prevalent  evils, 

1  See   Hinsdale,   The  Old  Northwest,    Chaps.   XI.-XIII.     Some  account  of 
these  controversies  are  given  in  this  work,  Chap.   XLI. 


THE  CONFEDERATION,  1781-1789.  85 

and  slower  still  to  see  the  necessary  remedy.  Having  but  recently 
escaped  from  the  evils  that  one  strong  government  had  inflicted 
upon  them,  they  were  not  in  haste  to  set  up  another  strong  one. 
Some  thought  King  George  as  good  a  king  as  "  King  Cong."  The 
problem  to  be  solved  was  really  one  of  great  difficulty,  involving 
the  adjustment  of  the  State  and  General  Governments.  The  States 
were  often  narrow-minded  and  jealous.  There  was  an  excess  of 
State  pride,  and  a  sad  lack  of  National  feeling.  Federal  government 
was  little  understood.  Few  men  saw  that  legitimate  trade  is  mu- 
tually advantageous;  and  States  legislated  on  the  principle  that  the 
true  way  to  build  up  themselves  was  to  pull  down  their  neighbors. 
And  finally,  there  were  men  of  influence  who  acted  from  no  general 
principles  whatever,  but  from  motives  of  pure  selfishness, — men  who 
believed  that  they  would  better  thrive  in  business  or  politics  in  the 
midst  of  confusion  and  distress  than  in  the  midst  of  peacQ  and  pros- 
perity. 

164.  Loss  of  the  Favorable  Opportunity. — The  favoring  oppor- 
tunity to  form  a  vigorous  national  government  had  been  lost.  That 
opportunity  came  in  the  years  1775  and  1776,  when  the  people  were 
in  the  full  flush  of  patriotic  ardor ;  when  Congress  had  great  author- 
ity and  prestige;  and  when  the  States  had  not  yet  seized  certain 
powers  that  they  now  held  so  stubbornly,  and  that  they  finally 
yielded  to  the  Union  only  from  stern  necessity.  Few  more  sig- 
nificant facts  were  stated  in  the  Federal  Convention  of  1787  than 
those  contained  in  this  extract  from  a  speech  by  Mr.  James  Wilson, 
of  Pennsylvania : 

"  Among  the  first  sentiments  expressed  in  the  first  Congress,  one 
was  that  Virginia  is  no  more,  that  Massachusetts  is  no  more,  that 
Pennsylvania  is  no  more,  etc. ;  we  are  now  one  nation  of  brethren ; 
we  must  bury  all  local  interests  and  distinctions.  This  language 
continued  for  some  time.  The  tables  at  length  began  to  turn.  No 
sooner  were  the  State  governments  formed  than  their  jealousy  and 
ambition  began  to  display  themselves.  Each  endeavored  to  cut  a 
slice  from  the  common  loaf  to  add  to  its  own  morsel ;  till  at  length 
the  Confederation  became  frittered  down  to  the  impotent  condition 
in  which  it  now  stands."* 

165.  Future  Political  Parties  in  Embryo. — At  the  beginning  of 
the  Revolutionary  struggles  the  country  was  sharply  divided  into  the 
Patriots  or  Whigs  and  the  Loyalists  or  Tories.  In  the  end,  the 
Tories  were  utterly  overwhelmed.  But  in  the  midst  of  the  struggle, 
the  Whigs  began  to  divide  into  two  sections  or  parties.  And,  inev- 
itably, this  division  had  reference  to  the  powers  that  the  General . 
Government  should  exercise.     It  was  a  sort  of  revival  of  the  old 

»  Elliot,  Debates,  Vol.  V.,  p.  172. 


86  THE  AMERICAN  GOVERNMENT. 

controversy  between  the  colonies  and  the  crown,  and  a  distinct  an- 
ticipation of  the  political  parties  of  later  years.  The  dispatches  of 
the  French  ministers  at  Philadelphia  to  Paris  contain  frequent  ref- 
erences to  the  bitter  contentions  of  the  National  and  State  parties.' 
One  was  the  party  of  Washington,  Franklin,  Jefferson,  Hamilton, 
and  Madison;  the  other  of  John  Adams,  Samuel  Adams,  Richard 
Henry  Lee  and  Arthur  Lee.  Mr.  Jefferson  went  so  far  as  to  hold 
that  Congress  had  authority  to  coerce  a  State  to  pay  its  quotas  to 
the  treasury. 

*  Durand,  Documents  on  the  American  Revolution,  p.  194. 

A'xJiJ^o       ^^-^^^-c^l   Tx/nloW  (^\  (l^^'O^^'-^x^ 

lA  .^  Tm^(^-^  O^f  rf"^ ^'.^.■-^■-  ..— 


xc^ 


CHAPTER    VII. 

THE  FEDERAL  CONVENTION  CALLED. 

References. 

I.  General.— Bancroft,  Vol.  VL  ("  The  Formation  of  the  Amer- 
ican Constitution,"  H.)  ;  same  author.  History  of  the  Constitution, 
Chaps.  VIL,  VIIL;  Hildreth,  Vol.  IIL;  Winsor,  Vol.  VIL,  Chap. 
IV.;  Curtis,  Book  III.,  Chaps.  VL,  VIL;  Frothingham,  Chap.  XIL ; 
Cooley,  same  as  in  last  chapter ;  Johnston,  same  as  in  last  chapter, 
also  "Convention  of  1787,"  in  Lalor;  Fiske,  The  Critical  Period  of 
American  History;  Von  Hoist,  Constitutional  and  Political  History 
of  the  U.  S.,  1750-1828;  McMaster,  Vol.  I.,  Chap.  IV.;  Schouler, 
Chap.  I.,  Section  2. 

II.  Special. — The  principal  documents  relating  to  the  calling  of 
the  Convention,  with  notes,  are  found  in  Elliot's  Debates,  Vol.  I. 
Many  of  them  are  contained  in  Bancroft's  and  Curtis's  histories  of 
the  Constitution.  See  also  Journals  of  Congress,  Vol.  IV.,  and  the 
Introduction  to  J.  C.  Hamilton's  edition  of  The  Federalist. 

166.  Conference  at  Alexandria. — In  March,  1785,  com- 
missioners appointed  by  Maryland  and  Virginia  met  at 
Alexandria  to  frame  a  compact  concerning  the  navigation 
of  Chesapeake  Bay  and  the  other  waters  that  belong  to 
those  States  in  common.  Mount  Vernon  is  near  by,  and 
they  naturally  conferred  with  its  distinguished  master. 
Not  only  was  Washington  alive  to  the  pending  scheme, 
but  he  was  also  deeply  interested  in  the  improvement  of 
the  navigation  of  the  Potomac  and  James  Rivers,  in  con- 
necting the  waters  of  the  seaboard  and  those  of  the  inte- 
rior by  transit  lines,  and  in  uniform  customs  duties  and  a 
uniform  currency  for  the  two  States.  He  urged  these  ideas 
on  the  commissioners.  In  time  the  commissioners  made 
reports  to  their  respective  legislatures  concerning  the  better 
regulation  of  the  navigation  of  the  Bay  and  the  Potomac. 
It  was  seen  at  once,  as  it  had  been  seen  at  Alexandria,  that 

(87) 


88  THE  AMERICAN  GOVERNMENT. 

the  two  States  alone  could  not  carry  out  the  plan  re- 
ported, much  less  the  large  ideas  suggested  by  Washing- 
ton.   Other  States  must  cooperate. 

167.  The  Virginia  Resolution. — On  January  21,  1786, 
the  Virginia  legislature,  after  considering  the  subject  dis- 
cussed at  Alexandria,  adopted  a  resolution  naming  eight 
commissioners  who,  or  any  five  of  whom,  should  meet 
such  commissioners  as  might  be  appointed  by  the  other 
States,  at  any  time  and  place  to  be  agreed  upon,  to  take 
into  consideration  the  trade  of  the  United  States;  to  con- 
sider how  far  uniformity  in  their  commercial  regulations 
might  be  necessary  to  their  common  interest  and  their 
permanent  harmony;  and  to  report  to  the  several  States 
such  an  act  relative  to  this  great  object  as,  when  unani- 
mously ratified  by  them,  would  enable  the  United  States 
in  Congress  assembled  effectually  to  provide  for  the  same. 
The  commissioners  were  instructed  immediately  to  transmit 
to  the  several  States  copies  of  this  resolution,  with  a  circu- 
lar letter  requesting  their  concurrence  therein,  and  proposing 
a  time  and  place  for  meeting. 

168.  Convention  at  Annapolis. — Twelve  commissioners, 
representing  the  States  of  New  York,  New  Jersey,  Penn- 
sylvania, Delaware,  and  Virginia,  in  pursuance  of  this  call, 
convened  at  Annapolis,  September  11,  1786.  Some  other 
States  appointed  commissioners  who  failed  to  appear.  The 
twelve  commissioners  saw  clearly  that  nothing  effectual 
could  be  accomplished  in  the  line  marked  out  by  the 
Virginia  resolution,  without  a  fuller  representation  of  the 
States.  They  saw,  too,  that  trade  was  intimately  con- 
nected with  other  subjects,  and  could  not  be  regulated 
without  setting  them  in  order.  Fortunately,  New  Jersey 
had  empowered  her  commissioners  to  consider  "  other  im- 
portant matters"*   as   well  as   trade;  and  the   convention, 


*  "  In  the  last  and  best  history  of  the  Constitution,  in  its  more  than  a  thou- 
sand pages,  only  a  single  phrase,  and  that  in  three  words,  is  printed  wholly  in 
capital  letters.  It  is  OTHER  IMPORTANT  MATTERS."— President  Austin 
Scott. 


THE  FEDERAL  CONVENTION  CALLED.  89 

catching  at  the  phrase,  adopted  a  report,  drawn  by  Alex- 
ander Hamilton,  recommending  a  general  convention  of  the 
States  to  digest  a  plan  for  strengthening  the  General  Gov- 
ernment. This  recommendation  was,  that  a  convention 
should  meet  at  Philadelphia  on  the  second  Monday  in  May, 
1787,  "  to  take  into  consideration  the  situation  of  the 
United  States,  to  devise  such  further  provisions  as  shall 
appear  to  them  necessary  to  render  the  constitution  of  the 
Federal  Government  adequate  to  the  exigencies  of  the 
Union;  and  to  report  such  an  act  for  that  purpose  to  the 
United  States  in  Congress  assembled  as,  when  agreed  to  by 
them,  and  afterwards  confirmed  by  the  Legislatures  of  every 
State,  will  effectually  provide  for  the  same." 

This  report  was  addressed  to  the  legislatures  of  the  five 
States,  but  copies  of  it  were  also  sent  to  Congress  and  to 
the  governors  of  the  eight  States  that  were  not  represented. 

169.  The  Action  of  Congress.^The  Articles  of  Con- 
federation could  be  altered  only  by  the  joint  action  of  Con- 
gress and  of  every  one  of  the  thirteen  States,  They  made 
no  provision  for  a  convention  as  a  part  of  the  machinery 
for  effecting  such  alteration.  Had  the  convention  at  An- 
napolis recommended  changes  in  the  Articles,  it  would 
have  submitted  them  to  the  States  appointing  its  members. 
Congress  would  naturally  be  jealous  of  any  convention 
that,  uninvited,  should  recommend  such  changes.  The  con- 
vention had  sent  its  report  to  Congress  for  its  information, 
from  motives  of  respect,  but  it  had  not  asked  that  body  to 
take  any  action  in  the  premises.  Congress  adopted,  how- 
ever, as  of  its  own  motion,  the  idea  of  holding  a  general 
convention.  On  February  21,  1787,  studiously  avoiding 
any  reference  to  the  proceedings  at  Annapolis,  but  referring 
to  similar  recommendations  made  by  individual  States,  that 
body  adopted,  with  a  suitable  preamble,  this  resolution: 

"  Resolved,  That,  in  the  opinion  of  Congress,  it  is  ex- 
pedient that  on  the  second  Monday  in  May  next,  a  conven- 
tion of  delegates,  who  shall  have  been  appointed  by  the 
several  States,  be  held  at  Philadelphia,  for  the  sole  and 


90  THE  AMERICAN  GOVERNMENT. 

express  purpose  of  revising  the  Articles  of  Confederation, 
and  reporting  to  Congress  and  the  several  Legislatures 
such  alterations  and  provisions  therein  as  shall,  when  agreed 
to  in  Congress  and  confirmed  by  the  States,  render  the 
Federal  Constitution  adequate  to  the  exigencies  of  govern- 
ment and  the  preservation  of  the  Union." 

170.  The  Action  of  the  States. — In  pursuance  of  the 
foregoing  resolution,  the  legislatures  of  twelve  States  elected 
such  number  of  delegates  to  the  convention  at  Philadelphia 
as  they  severally  chose.  The  Rhode  Island  legislature  was 
opposed  to  the  whole  movement  and  took  no  action  what- 
ever. 


Note. — The  foregoing  recital  shows  that  the  master  cause  of  the  conven- 
tion of  1787  was  the  commercial  derangement  of  the  country.  Reviewing  this 
ground,  Mr.  Justice  Miller  has  said: 

"  It  is  not  a  little  remarkable  that  the  suggestion  which  finally  led  to  the  re- 
lief, without  which  as  a  nation  we  must  soon  have  perished,  strongly  supports 
the  philosophical  maxim  of  modern  times  —  that  of  all  the  agencies  of  civiliza- 
tion and  progress  of  the  human  race,  commerce  is  the  most  efficient  What  our 
deranged  finances,  our  discreditable  failure  to  pay  our  debts,  and  the  sufferings 
of  our  soldiers  could  not  force  the  several  states  of  the  American  Union  to 
attempt  was  brought  about  by  a  desire  to  be  released  from  the  evils  of  an  un- 
regulated and  burdensome  commercial  intercourse,  both  with  foreign  nalions  and 
between  the  several  states." —  Memorial  Oration  at  the  Centennial  Celebration 
of  the  Constitution,  Philadelphia,  September  17,  1887. 


CHAPTER  VIII. 

WORK  BEFORE  THE  CONVENTION. 

References. 

I.  General. — Elliot's  Debates,  Vol.  I.  (containing  Journal  of  the 
Convention)  and  Vol.  V.  (containing  Madison's  reports  of  the  de- 
bates). Also  Papers  of  James  Madison,  Vol.  III.  ("Debates  in  the 
Federal  Convention,"  etc.). 

II.  Special. — Bancroft,  Vol.  VI.,  ("  The  Formation  of  the  Amer- 
ican Constitution,"  III.),  and  History  of  the  Constitution;  Hildreth, 
Fiske,  Johnston,  Cooley,  same  as  in  last  chapter ;  Von  Hoist,  Chap. 
I.;  Story,  Book  III.,  Chap.  I.;  Frothingham,  Chap.  XII.;  Winsor, 
Vol.  VII.,  Chap.  IV.;  Pitkin,  Chaps.  XVIII.,  XIX.;  Hart,.  Chap. 
VI.;  Schouler,  History  of  the  U.  S.,  Chap.  I.,  Sec.  2;  McMaster, 
Vol.  I.,  Chap.  IV. ;  Burgess,  Political  Science,  etc..  Book  III., 
Chap.  II. 

For  a  popular  purpose,  the  best  book  that  deals  with  the  Constitu- 
tional era  is  Fiske's  Critical  Period  of  American  History. 

171.  Meeting  and  Organization. — On  the  day  fixed, 
May  14,  1787,  a  number  of  delegates  to  the  Federal  Con- 
vention met  at  the  Statehouse  in  Philadelphia,  but  a  ma- 
jority of  the  States  was  not  present  until  the  25th,  when 
an  organization  was  effected.  Washington  was  unani- 
mously chosen  president  and  William  Jackson  secretary. 

172.  Groups  of  Questions. —  When  the  Convention  came 
to  debate  and  to  vote,  it  was  discovered  that  the  mem- 
bers differed  widely  in  opinion  on  many  subjects.  Still,  the 
multitude  of  issues  that  arose,  first  and  last,  can  be  divided 
into  three  groups:  (i)  questions  relating  to  the  organic 
nature  of  the  government,  or  to  the  source  of  its  powers 
and  the  mode  of  its  operation;  (2)  questions  relating  to 
the  internal  construction  of  the  government  considered  as 
an  organism  or   machine,   its   model   or   framework;    (3) 

(91) 


92  THE  AMERICAN  GOVERNMENT. 

questions  relating  to  the  powers  of  the  government,  or  the 
functions  that  it  should  perform. 

173.  Relations  of  the  Questions. — These  groups  of 
questions  were  at  once  closely  related,  and  yet  quite  dis- 
tinct. The  National  Government  could  be  based  directly 
on  the  people  rather  than  on  the  States,  and  at  the  same 
time  consist  of  a  congress  of  one  house  and  be  limited  to 
a  narrow  field  of  operations;  or  a  congress  of  one  house, 
elected  by  the  States,  could  be  clothed  with  ample  powers 
and  act  immediately  on  the  people  through  its  agents ;  or  a 
government  of  three  departments,  with  a  congress  of  two 
houses,  could  be  organized.  At  the  same  time,  the  "  strong  " 
elements  tended  to  affiliate,  and  so  did  the  "  weak  "  ones. 
Mr.  Dickinson  said  to  Mr.  Madison :  "  Some  of  the  mem- 
bers from  the  small  States  wish  for  two  branches  in  the 
general  legislature,  and  are  friends  to  a  good  National 
government;  but  we  would  sooner  submit  to  a  foreign 
power  than  submit  to  being  deprived  of  an  equality  of 
suffrage  and  thereby  be  thrown  under  the  domination  of 
the  larger  States."^ 

174.  Nature  of  the  Government. — In  the  discussions 
of  the  Articles  of  Confederation  in  1776-1777,  an  issue 
had  arisen  involving  the  large  and  the  small  States.  Vir- 
ginia, Pennsylvania,  and  Massachusetts,  which  together 
had  about  one  half  the  population  of  the  Union,  were  dis- 
satisfied with  the  rule  adopted  in  1774,  giving  the  States  an 
equal  suffrage  in  Congress.  They  strove  to  secure  the 
adoption  of  a  new  rule  which  should  give  the  States  power 
in  proportion  to  their  importance,  and  proposed  population 
as  the  basis  of  representation.  This  plan  the  other  States 
defeated.  But  out  of  this  feeling,  which  had  grown  with 
the  growth  of  State  power,  sprang  the  question  that  most 
troubled  the  Convention  of  1787.  It  was  simply  whether 
the  Federal  Government  should  spring  directly  from  the 
States  as  political  corporations,  or  directly  from  the  people 

»  Elliot,  Debates,  Vol.  V.,  p.   191,  Note. 


( 

'      WORK  BEFORE  THE  CONVENTION.  93 

of  the  States,  Should  representation  be  equal,  or  be  accord- 
ing to  the  importance  of  the  States  as  measured  by  their 
population,  or  some  other  standard  to  be  agreed  upon? 

175.  The  National  Party. — According  to  the  resolution 
of  Congress,  the  sole  purpose  of  the  Convention  was 
to  propose  such  a  revision  of  the  Articles  of  Confederation 
as  should  render  the  Federal  Constitution  adequate  to  the 
exigencies  of  government  and  the  preservation  of  the  Union. 
But  as  the  Virginia  and  Maryland  commissioners  at  Alex- 
andria had  found  it  impossible  for  those  States  alone  to 
regulate  the  navigation  of  their  common  waters ;  and  as 
the  Annapolis  Convention  had  found  it  impossible  for  all 
the  States  to  regulate  trade  separate  and  apart  from  other 
important  matters,  so  now  some  delegates  believed  that  no 
mere  revision  of  the  Articles  would  be  adequate  to  the 
exigencies  of  government  and  the  preservation  of  the 
Union,  and  held  that  a  new  constitution  based  on  new 
principles  was  necessary.  They  therefore  proposed  a  Na- 
tional system,  comprehending  these  ideas :  A  government 
emanating  directly  from  the  people;  proportional  represen- 
tation ;  three  branches  and  a  bicameral  legislature,  and 
ample  powers  exercised  by  National  officers.  These  men 
were  called  the  National  party,  the  Thorough-revision  party, 
and  the  Large-State  party. 

176.  The  State  Party. — Some  delegates  opposed  all 
these  ideas ;  others  opposed  the  first  two,  and  particularly 
proportional  representation.  These  all  favored  what  they 
called  "  a  State  system,"  the  central  idea  of  which  was  an 
equal  suffrage  in  Congress.  Some  of  them,  however,  were 
quite  willing  that  the  framework  of  the  government  should 
be  altered,  if  only  the  States  should  have  equal  power  in  it. 
This. second  group  was  called  the  State,  the  Small-State, 
and  the  Slight-revision  party. 

177.  The  Fundamental  Question. — The  fundamental 
question  was,  the  National  idea  or  the  State  idea.  Na- 
tional men  said  it  was  un-republican  for  the  37,000  people 
of  Delaware  to  have  the  same  weight  in  the  Union  as  the 


94  THE  AMERICAN  GOVERNMENT. 

half  million  of  Virginia.  State  men  replied  that  the  Union 
was  a  confederation,  that  a  confederation  assumed  sover- 
eignty in  its  members,  and  that  sovereignty  implied  equal- 
ity. The  first  rejoined  that  they  favored  a  National  system; 
and  then  the  second  responded  that  they  would  never  con- 
sent to  such  a  system.  Mr.  Paterson  declared  that,  with 
proportional  suffrage,  the  large  States  would  swallow  the 
small  ones ;  Dr.  Franklin  replied  that  the  large  States 
neither  would  or  could  combine  to  swallow  the  small  ones, 
and  that  with  equal  suffrage  it  was  as  much  in  the  power 
of  the  small  States  to  swallow  the  large  ones.  The  small 
States  did  not  care  so  much  about  the  powers  of  the  Na- 
tional Government,  or  even  its  framework,  as  they  did 
about  the  absorption  of  those  powers  by  the  large  States, 
which  they  declared  a  proportional  suffrage  would  make 
inevitable.  Hence,  the  contention  was  not  so  much  about 
powers  as  about  the  hands  that  the  powers  should  fall  into. 
The  fact  that  an  equal  vote  had  been  the  rule  since  the 
Union  began,  gave  the  State  party  a  decided  advantage. 
With  this  question  two  others  were  affiliated,  viz.,  the  rep- 
resentation of  property  and  supplies  for  the  treasury. 

178.  Representation  of  Property. — Some  men  thought 
the  government  should  also  be  based,  in  part  at  least,  upon 
wealth.  Property,  they  said,  had  rights  as  well  as  persons. 
The  British  House  of  Commons  rested  to  a  great  extent 
on  this  basis.  Some  of  those  who  took  this  view  thought 
suffrage  in  Congress  should  be  in  proportion  to  contribu- 
tions to  the  National  treasury;  others,  that  is  should  be  in 
proportion  to  the  wealth  of  the  States.  • 

179.  Supplies  for  the  Treasury. — It  was  generally 
agreed  that  Congress  should  have  power  to  levy  customs 
duties.  But  it  was  supposed  that  these  would  be  insuffi- 
cient; that  direct  taxes,  or  requisitions  on  the  States,  would 
be  necessary ;  and  so  the  question  arose  how  these  taxes 
should  be  apportioned.  Should  the  apportionment  be  ac- 
cording to  the  population  of  the  States?  or  according  to 
property?  or  be  equal?     And  if  according  to  population, 


( 

WORK  BEFORE  THE  CONVENTION.  95 

should  the  rule  be  the  white  population,  the  free  popula- 
tion, or  the  total  population?  State  men  were  not  in  favor 
of  an  equal  tax;  while  National  men  naturally  asked  why 
the  tax  should  not  be  equal  as  well  as  the  vote.  These 
questions  were  not  new;  they  had  vexed  Congress  when 
framing  the  Articles  of  Confederation. 

180.  Framework  of  the  Government. — In  regard  to  the 
framework  or  model  of  the  government, —  its  internal  con- 
struction considered  as  a  machine  (p.  91), — it  was  pro- 
posed by  some  that  the  government  should  consist  of  a 
legislature  alone,  and  this  of  but  one  house.  This  was 
merely  retaining  the  old  framework.  Another  proposition 
was,  a  government  of  three  independent  branches,  and  a 
congress  of  two  houses.  Besides  these  principal  questions 
there  were  many  minor  ones  that  fall  into  the  same  group, 
as :  How  shall  the  President  and  Vice  President  be  chosen  ? 
What  shall  be  their  duties?  and  How  shall  the  Judiciary  be 
organized  ? 

181.  Powers  of  the  Government. — At  one  extreme  of 
the  Convention  stood  a  few  men  who  desired  as  much 
as  possible  to  centralize  powers,  and  to  leave  the  States  a 
minimum;  at  the  other  extreme,  a  larger  number  %ho  did 
not  favor  giving  the  Union  any  considerable  increase  of 
powers ;  between  the  two  extremes  stood  a  third  class  who 
were  desirous  of  materially  strengthening  the  government, 
but  by  no  means  agreeing  among  themselves  concerning 
details.     Two  of  the  questions  at  issue  will  be  stated. 

182.  Control  of  Commerce. — While  the  evils  resulting 
from  State  control  of  commerce  were  universally  felt,  and 
were  also  the  main  cause  of  the  Convention's  being  called, 
still  the  delegates  were  far  from  being  a  unit  when  they 
came  to  deal  with  the  subject.  New  Jersey  had  pro- 
posed, when  the  Articles  were  framed,  to  give  Congress 
power  over  foreign  trade.  The  Northern  States,  which 
owned  most  of  the  shipping  and  carried  on  most  of  the 
commerce,  were  now  generally  anxious  to  have  the  control 
of  commerce  put  into  the  hands  of  Congress ;  the  Southern 


96  THE  AMERICAN  GOVERNMENT. 

States,  which  were  interested  in  a  few  principal  agricul- 
tural staples, —  as  Virginia,  Maryland,  and  Delaware  in 
tobacco,  North  Carolina  in  ship-stores,  South  Carolina  in 
rice,  and  Georgia  in  indigo  —  shrank  from  this  conclusion. 
They  said  Congress  could  then  destroy  their  prosperity  by 
putting  export  duties  on  their  staple  products. 

183.  Slavery  in  the  Convention. — Slavery  gave  no  little 
trouble.  It  existed  by  State  authority ;  the  Convention 
proposed  to  leave  it  to  State  regulation,  but  it  was  necessary 
to  adjust  the  government  of  the.  Union  to  the  institution. 
It  presented  two  stubborn  questions.  North  Carolina,  South 
Carolina,  and  Georgia  wanted  their  slaves  counted  in  ap- 
portioning voting  power  in  Congress,  but  did  not  want  them 
counted  in  apportioning  taxes ;  while  many  of  the  delegates 
from  other  States  wanted  to  have  slaves  taxed,  but  did  not 
want  to  have  them  represented.  Then  the  three  Southern 
States  were  also  determined  that  the  importation  of  negroes 
should  not  be  interfered  with,  which  was  obnoxious  to 
other  States. 

184.  Conflict  of  Interests. — Thus  were  the  delegates 
divided  in  opinion.  Thus  was  the  Convention  cut  through 
and  through  by  lines  that  crossed  one  another  at  all  anglesi 
Seldom  has  a  deliberative  assembly  been  compelled  to  deal 
with  elements  so  blended  and  confusing.  But,  after  all, 
the  hope  of  the  Convention,  and  of  the  country,  lay  in 
this  very  confusion.  The  Large-State  and  Small-State 
parties  both  dissolved  the  moment  the  fundamental  ques- 
tion of  constituting  the  government  was  disposed  of,  and 
the  secondary  question  of  powefs  was  taken  up.  More- 
over, all  the  questions  did  not  demand  an  answer  on  any 
one  day;  had  they  done  so,  the  Convention  must  have 
ended  in  failure. 

185.  The  Virginia  Plan. — On  May  29  Governor  Ran- 
dolph presented  to  the  Convention  a  series  of  fifteen  resolu- 
tions that  are  known  as  the  Virginia  plan.     The  same  day  ^ 

^  It    is    well    known    to    historical    scholars   that    the    so-called    "  Pinckney 
plan  "  as  found  in  Elliot,  Vol.  I.,  p.  129,  is  a  document  of  no  authority.     It  was 


r 

WORK  BEFORE  THE  CONVENTION.  97 

Charles  Pinckney,  of  South  Carolina,  also  presented  a  plan. 
These  plans  were  considered  in  committee  of  the  whole 
until  June  13,  when  the  first  one,  somewhat  amended  and 
expanded,  was  favorably  reported  to  the  Convention.  This 
plan  embodied  the  National  theory  in  its  strongest  form. 
The  Legislative  branch  should  consist  of  two  houses,  the 
first  elected  by  the  people  of  the  States  for  three  years,  the 
second  by  the  State  Legislatures  for  seven  years;  the  Ex- 
ecutive should  be  chosen  by  the  two  houses  of  the  National 
legislature ;  the  Judiciary,  by  the  second  house.  The  rep- 
resentation in  each  house  should  be  according  to  the 
respective  population  of  the  States,  or  their  quotas  of  con- 
tribution. This  rule  would  have  given  the  States  of  Mas- 
sachusetts and  Virginia  twenty-six  Representatives  in  a 
house  of  sixty-six,  and  thirteen  Senators  in  a  Senate  of 
twenty-eight. 

186.  The  Jersey  Plan. — On  June  15  Mr.  Paterson,  of 
New  Jersey,  as  the  spokesman  of  the  small  States,  pre- 
sented the  alternative  scheme,  in  eleven  resolutions.  This 
plan  made  no  change  in  the  basis  of  the  government ;  it 
left  Congress  a  single  body,  with  an  equal  representation 
elected  by  the  States.  It  provided  a  Federal  Executive  to 
be  appointed  by  Congress,  and  a  Judiciary  to  be  appointed 
by  the  executive.  This  plan  was  much  more  definite  and 
full  with  regard  to  powers  than  the  one  introduced  by  Mr. 
Randolph.  But  it  must  be  remembered  that  the  two 
statesmen  were  looking  mainly  at  two  different  things: 
Randolph,  at  organizing  a  new  government ;  Paterson,  at 
strengthening  an  old  one. 

187.  Reaffirmation  of  the  Virginia  Plan. — The  Ran- 
dolph, Pinckney,  and  Paterson  plans  were  now  sent  to  the 
committee  of  the  whole,  that  the  new  one  might  be  dis- 
cussed. The  committee  reported,  June  19,  that  it  did  not 
agree  to  the  Paterson  propositions,  and  again  affirmed  the 


evidently  filled  in  by  Mr.  Pinckney  as  the  convention  proceeded.  See  The 
Madison  Papers,  Vol.  III.,  Appendix  2,  and  The  IVritings  of  James  Madison, 
Vol.  IV.,  pp.  17a,  173,  181,  182,  338,  339,  378,  379. 

AM.  GOV. 7 


98  THE  AMERICAN  GOVERNMENT. 

Virginia  plan.  This  action  thoroughly  alarmed  the  Small- 
State  men  and  came  near  upsetting  the  Convention.  The 
Large-State  men  were  now  at  liberty  to  go  on  and  frame  a 
constitution,  if  they  could  hold  together;  but  they  knew 
perfectly  well  that  any  constitution  approved  by  a  vote  of 
six  States  to  five  would  be  rejected.  Fortunately,  the  dis- 
tinctness of  the  first  and  second  groups  of  questions  left  the 
Convention  a  door  of  escape,  as  we  shall  see  in  the  next 
chapter. 

i88.  Character  of  the  Convention. — In  all  sixty-five  delegates 
were  appointed,  but  only  fifty-five  attended.  Of  these  one  had  sat  in 
the  Albany  Congress,  three  in  the  Stamp-Act  Congress,  seven  in  the 
Congress  of  1774,  nine  had  signed  the  Declaration  of  Independence, 
forty-three  had  been  members  of  Congress  and  eighteen  were  mem- 
bers at  this  time.  Twenty-nine  had  received  a  liberal  education, 
either  in  the  colleges  of  the  country  or  in  the  universities  of  Great 
Britain.  In  ability,  education,  and  political  experience,  the  Conven- 
tion represented  the  best  elements  of  the  country.  Washington  and 
Franklin  were  the  two  most  famous  members ;  Madison  and  Hamil- 
ton were  the  ablest  political  thinkers,  but  there  were  a  large  number 
of  men  of  a  high  order  of  ability. 

189.  The  Words  "Strong"  and  "Weak."— The  ambiguities 
lurking  in  the  words  strong  and  weak  have  much  confused  the  his- 
tory of  the  Federal  Convention.  To  say  that  a  man  favored  a 
strong  or  a  weak  government  does  not  settle  his  status.  For  ex- 
ample, although  Mr.  Randolph  favored  a  "  strong  government,"  he 
resisted  giving  Congress  the  control  of  commerce,  and  finally  re- 
fused to  sign  the  Constitution  lest  it  become  an  instrument  of 
tyranny.  His  "  strong  government "  was  one  of  three  departments, 
having  a  bicameral  Congress  in  which  the  States  should  be  ratably 
represented.  Mr.  Paterson,  and  the  Northern  State  men  generally, 
wanted  a  "  weak  government,"  and  yet  they  wished  to  give  Con- 
gress the  control  of  commerce.  Their  "  weak  government "  was 
one  in  which  the  States  were  equally  represented. 

190.  Composition  of  the  Large-State  Party. — The  Large-State 
party  was  not  composed  exclusively  of  large  States.  Had  it  been,  it 
could  never  have  commanded  more  than  three  votes  out  of  twelve. 
North  Carolina,  South  Carolina,  and  Georgia  voted,  on  the  motions 
involving  this  issue,  along  with  Virginia,  Pennsylvania,  and  Massa- 
chusetts. Connecticut,  New  York,  New  Jersey,  Delaware,  and 
Maryland  made  up  the  other  party.  New  Hampshire  was  not  pres- 
ent until  July  23,  and  Rhode  Island  not  at  any  time.    Had  these  two 


WORK  BEFORE  THE  CONVENTION.  99 

States  been  present  from  the  beginning,  it  is  impossible  to  say  what 
the  final  outcome  would  have  been.  "  A  more  fortunate  union  of 
circumstances  for  even-handed  compromise  could  hardly  have  been 
imagined.  The  large  States  had,  through  all  the  preliminary  debates, 
a  majority  of  six  to  five,  large  enough  to  insure  a  general  run  of 
success  in  nationalizing  the  new  government,  but  not  so  large  as 
to  obviate  the  necessity  of  deference  to  the  minority." 

191.  Slavery  in  the  Colonies. — In  1619,  the  very  year  that  Vir- 
ginia won  her  House  of  Burgesses,  a  Dutch  ship  landed  a  few 
negroes  at  Jamestown,  and  with  that  act  the  history  of  slavery  in 
the  United  States  began.  For  a  time  its  growth  was  very  slow ;  few 
negroes  were  imported,  and  their  natural  increase  was  small. 
Afterwards,  both  importations  and  the  natural  increase  became  more 
rapid.  The  increase  in  the  total  number  of  slaves,  as  well  as  their 
distribution  North  and  South,  is  shown  by  this  table :  ^ 

1715  177s  1790 

North 10,900         46,120       40,370 

South 47.950         455,000         657.527 


Total 58,850         501,120         697,897 

Generally,  the  colonies  were  opposed  to  the  slave  trade  and  to 
slavery.  Statutes  by  the  score  designed  to  limit  or  prohibit  the  im- 
portation of  slaves,  are  found  in  their  statute  books.  But  this  oppo- 
sition was  always  overborne  by  British  traders  supported  by  the 
British  government.  The  feeling  of  the  country  is  shown  by  a 
resolution  adopted  by  Congress,  April  6,  1776,  three  months  before 
independence  was  declared :  "  That  no  slaves  be  imported  into  any 
of  the  thirteen  United  Colonies."  Some  of  the  States,  as  Virginia, 
had  already  taken  the  same  action.  In  1787  slavery  had  ceased  to 
exist  in  Massachusetts  and  New  Hampshire,  and  in  the  five  other 
Northern  States  it  was  doomed  to  early  extinction.  The  most  en- 
lightened Southern  men  looked  upon  the  institution  as  a  great  evil 
to  be  remedied  as  soon  as  possible ;  and  it  appears  to  have  been  the 
general  expectation  in  the  South  that  the  remedy  would  come  at  an 
early  day.  The  industrial  prosperity  of  the  Southern  States,  and 
particularly  of  the  two  Carolinas  and  Georgia,  for  the  time  depended 
upon  slave  labor.  It  was  almost  universally  believed  that  emanci- 
pation would  be  attended  by  greater  evils  than  slavery  itself.  Even 
Mr.  Jefferson,  who  was  a  strong  antislavery  man,  said  the  two  races, 
equally  free,  could  not  live  together  in  the  same  government. 

*  Lalor's  Cyclopttdia  of  Political  Science,  "  Slavery." 


CHAPTER  IX.   ^  X  - 

THE  CONSTITUTION  FRAMED. 

See  references  of  last  chapter,  to  which  may  be  added  Johnston's 
article,  "  Compromises  in  U.  S.  History,"  I.,  III.,  in  Lalor's  Cyclo- 
paedia. 

192.  First  Compromise. — Twice  before  June  15  it  had 
been  suggested  that  different  rules  of  suffrage  should  be 
adopted  for  the  two  houses  of  Congress.  No  attention  was 
paid  to"  these  suggestions  at  the  time.  On  June  29  Mr. 
Johnson,  of  Connecticut,  proposed  that  instead  of  longer 
opposing  the  National  idea  to  the  State  idea,  the  Convention 
should  combine  the  two, —  make  the  suffrage  proportional 
in  the  one  house  and  equal  in  the  other.  Mr.  Ellsworth,  also 
of  Connecticut,  made  that  motion.  The  Union,  he  said,  was 
partly  national,  partly  federal ;  proportional  representa- 
tion in  the  first  branch  would  be  conformable  to  the  na- 
tional principle,  and  an  equality  of  voices  in  the  other 
would  be  conformable  to  the  federal  principle.  Dr.  Frank- 
lin seconded  the  motion.  "  The  small  States  contended," 
he  said,  "  that  the  national  principle  would  endanger  their 
liberties ;  the  large  States  contended  that  the  federal  prin- 
ciple would  endanger  their  money.  When  a  broad  table  is 
to  be  made,  and  the  edges  of  the  planks  do  not  fit,  the 
artist  takes  a  little  from  both  and  makes  a  good  joint." 
This  motion,  sometimes  called  the  "  Connecticut  Compro- 
mise," was  finally  adopted.  With  it  were  coupled  two 
other  propositions.  The  first  of  these,  "  all  bills  for  raising 
revenue  shall  originate  in  the  House  of  Representatives," 
was  a  concession  to  the  large  States.  The  other  one,  that  in 
apportioning  Representatives  and  direct  taxes  three  fifths 

of  the  slaves  should  be  counted,  was  a  concession  to  the 

(100) 


THE  CONSTITUTION  FRAMED.  loi 

Carolinas  and  Georgia.  This  compromise  was  not  adopted 
as  a  whole  at  one  time,  but  by  separate  votes,  item  by 
item.  The  concession  of  an  equal  vote  to  the  small  States 
was  made  irreversible.  Article  V.  of  the  Constitution 
declares:  "No  State,  without  its  consent,  shall  be  de- 
prived of  its  equal  suffrage  in  the  Senate." 

193.  Effects  of  the  Compromise. — The  adoption  of  this 
compromise  was  followed  by  two  favorable  results.  The 
men  most  opposed  to  an  efficient  government  went  home  in 
disgust;  while  the  Small-State  men,  who  really  wanted* 
such  a  government,  were  put  in  a  good  humor,  and  were 
ready  to  assist  in  making  it  as  strong  as  was  necessary. 
Now  that  they  were  convinced  that  their  States  would 
not  be  merged  in  a  consolidated  National  plan,  or  their  in- 
fluence lost  in'  public  affairs,  such  delegates  as  Dickinson 
and  Paterson  worked  side  by  side  with  Franklin  and  Madi- 
son in  perfecting  the  details  of  the  Constitution.  Nothing 
could  show  more  conclusively  that  the  most  radical  dif- 
ference of  opinion  related  to  the  organic  nature  of  the  gov- 
ernment, rather  than  to  its  powers  or  its  framework. 

194.  Second  Compromise. — The  second  compromise  re- 
lates to  commerce,  and  simply  balances  the  two  propositions : 
"  Congress  shall  have  power  ...  to  regulate  com- 
merce with  foreign  nations,  and  among  the  several  States, 
and  with  the  Indian  tribes,"  and,  "  No  tax  or  duty  shall  be 
laid  on  articles  exported  from  any  State."  The  first  was  a 
concession  to  the  commercial  States  of  the  North ;  the 
second,  to  the  agricultural  States  of  the  South. 

/  195.  Third  Compromise. — The  Carolinas  and  Georgia 
maintained  that  Congress  should  be  prohibited  from  abolish- 
ing the  slave  trade,  or  taxing  it  more  highly  than  other 
commerce.  After  a  heated  debate,  which  brought  the 
Convention  to  a  standstill  as  effectually  as  the  representa- 
tion question  had  done,  the  three  States  united  with  New 
England  in  carrying  a  new  compromise.  It  was  con- 
ceded, on  the  one  hand,  that  Congress  should  not  forbid 
the  trade  for  twenty  years;  and,  on  the  other,  that  in  the 


I02  THE  AMERICAN  GOVERNMENT. 

meantime  Congress  might  impose  upon  the  negroes  im- 
ported a  tax  of  ten  dollars  a  head.  The  three  States  also 
assisted  the  North  in  striking  out  of  the  Constitution,  as  it 
then  stood,  a  clause  requiring  a  two-thirds  vote  in  each 
house  of  Congress  to  enact  navigation  laws.  Virginia 
strongly  opposed  this  compromise.  She  thought  the  first 
feature  would  tend  to  perpetuate  slavery,  while  she  ob- 
jected to  giving  the  control  of  commerce  to  a  majority  in 
Congress.  It  was  also  a  part  of  this  arrangement  that 
■  slaves  escaping  from  one  State  into  another  should  be 
given  up  to  their  masters  on  demand. 

196.  Stages  of  Progress. — Few  of  the  steps  taken  by  the 
Convention  need  be  here  reported.  On  July  24  the  whole 
subject,  including  all  the  material  that  had  been  accumu- 
lated, was  referred  to  a  committee  of  five,  called  the  Com- 
mittee of  Detail,  to  report  a  draft  of  the  Constitution,  The 
report  of  this  committee,  submitted  August  6,  bears  a  gen- 
eral resemblance  to  the  Constitution  as  finally  adopted.  The 
whole  ground  was  now  gone  over  again ;  some  old  features 
were  dropped,  and  some  new  ones  added.  On  September 
8  the  articles  already  agreed  to  were  sent  to  a  Committee 
of  Revision,  consisting  of  five,  for  arrangement  and  revision 
of  style.  Four  days  later,  the  Constitution  came  back  nearly 
in  its  present  form,^  and  the  proceedings  entered  on  their 
final  stage.  Three  or  four  days  were  now  spent  in  a  final 
revision.  A  few  changes  were  made,  of  which  the  most  im- 
portant was  the  reduction  of  the  minimum  rate  of  repre- 
sentation in  the  House  of  Representatives  from  40,ocx)  to 
30,cxx).  Resolutions  submitting  the  Constitution,  and  an 
address  to  Congress  to  be  signed  by  the  president,  were 
agreed  to.  On  the  final  vote  the  States  present  were  unani- 
mous, viz. :     New  Hampshire,  Massachusetts,  Connecticut, 

*  "  The  finish  given  to  the  style  and  arrangement  of  the  Constitution  fairly 
belongs  to  the  pen  of  Mr.  [Gouverneur]  Morris;  the  task  having  probably  been 
handed  over  to  him  by  the  chairman  of  the  committee,  himself  a  highly  re- 
spected member,  and  with  the  ready  concurrence  of  the  others.  A  better  choice 
could  not  have  been  made,  as  the  performance  of  the  task  proved." — ^James^ 
Madison. 


[ 


THE  CONSTITUTION  FRAMED.  103 

New  Jersey,  Pennsylvania,  Delaware,  Virginia,  North 
Carolina,  South  Carolina,  and  Georgia.  Single  delegates 
were  present  from  New  York  and  Maryland,  but  they 
could,  not  cast  the  votes  of  those  States. 

197.  Signing  and  Adjournment. — Monday,  September 
17,  the  Convention  met  for  the  last  time.  The  Consti- 
tution had  been  engrossed  and  was  ready  to  be  signed. 
Only  forty-two  of  the  fifty-five  members  who  had  attended' 
were  present,  and  three  of  these  had  declared  themselves  in 
opposition.  In  the  hope  that  the  signatures  of  all  might  be 
secured,  a  form  that  made  the  signers  merely  witnesses  to 
what  had  been  done,  and  did  not  declare  their  approval,  had 
been  adopted.  "  Done  in  Convention  by  the  unanimous 
consent  of  the  States  present,  the  seventeenth  day  of  Sep- 
tember, in  the  year  of  our  Lord  one  thousand  seven  hundred 
and  eighty-seven,  and  of  the  independence  of  the  United 
States  of  America  the  twelfth.  In  witness  whereof  we  have 
hereunto  subscribed  our  names."  But  the  three  members 
still  refused  to  sign.  So  the  thirty-nine  men  signed,  and 
the  Convention  adjourned  sine  die. 

198.  The  Three  Compromises. — The  history  of  these  compro- 
mises is  of  the  greatest  interest.  It  reveals  some  of  the  difficulties 
attending  constituting  a  federal  government,  and  particularly  a  fed- 
eral republic,  involving,  as  it  does,  the  adjustment  of  two  jurisdic- 
tions. Secondly,  it  shows  the  skill  with  which,  in  the  present  case, 
this  problem  was  solved.  And,  thirdly,  it  is  a  good  illustration  of 
the  political  genius  of  the  English-speaking  people,  who  never  press 
an  abstract  principle  to  an  extreme,  but  rather  consult  the  facts  of 
history.  The  first  and  third  compromises  have  been  denounced  as 
compromises  of  a  moral  question.  Slavery  then  existed  in  most  of 
the  States ;  the  Convention  could  not  abolish  it,  even  if  such  were  its 
wish;  and  the  members  generally  thought  it  as  proper  a  subject  for 
compromise  as  any  other.  So  far  as  we  can  now  see,  without  these 
compromises  no  constitution  would  have  been  made,  and  the  Amer- 
ican Union  would  have  fallen  to  pieces.  Furthermore,  they  were 
made  at  different  stages  of  the  Convention's  progress  as  the  subjects 
were  reached. 

199.  Second  Convention  Proposed. — The  last  few  days  of  the 
Convention,  the  idea  of  calling  a  second  convention  got  afloat.  The 
Constitution  provided  for  its  own  amendment  after  it  should  go  into 


I04  THE  AMERICAN  GOVERNMENT. 

effect,  but  this  did  not  satisfy  the  men  who  brought  forward  this 
proposition.  They  insisted  that  it  should  be  amended  before  going 
into  effect,  or  at  least  that  an  opportunity  for  amendment  should  be 
given.  Governor  Randolph  twice  made  that  motion,  and  said  he 
would  vote  for  the  Constitution  if  the  motion  were  carried.  Mr. 
Mason  said  in  favor  of  one  of  these  motions :  "  A  second  convention 
will  know  more  of  the  sense  of  the  people,  and  be  able  to  provide  a 
system  more  consonant  to  it."  Mr.  Pinckney  replied :  "  Nothing  but 
•confusion  and  contrariety  will  spring  from  the  experiment.  The 
States  will  never  agree  in  their  plans,  and  deputies  to  a  second  con- 
vention coming  together  under  the  discordant  impressions  of  their 
constituents,  will  never  agree."  The  motion  was  lost  by  a  unani- 
mous vote. 

200.  Spirit  of  the  Convention. — The  three  members  who  re- 
fused to  sign  were  Gerry,  of  Massachusetts,  and  Mason  and  Ran- 
dolph, of  Virginia.  They  had  all  taken  an  active  part  in  the 
Convention,  and  Mason  and  Randolph  had  supported  the  strongest 
features  of  the  Virginia  plan.  But  now  that  the  work  was  finished, 
and  they  could  survey  it  as  a  whole,  they  seemed  surprised  and 
alarmed  at  the  long  step  forward  that  had  been  taken.  Randolph 
afterwards  favored  the  ratification  of  the  Constitution,-  but  Mason 
and  Gerry  opposed  it  to  the  end.  The  three  statesmen  assigned 
various  and  conflicting  reasons  for  their  final  action,  which  called 
out  a  number  of  the  signers  in  reply.  Franklin  said  he  expected  no 
better  constitution,  and  was  not  sure  but  this  one  was  the  best. 
Gouverneur  Morris  had  objections,  but  considered  the  plan  agreed 
upon  the  best  one  attainable.  Hamilton  said  no  man's  ideas  were 
more  remote  from  the  plan  than  his  own ;  but,  "  is  it  possible,"  he 
asked,  "  to  deliberate  between  anarchy  and  convulsion  on  one  side, 
and  the  chance  of  good  to  be  expected  from  the  plan,  on  the  other?  " 
How  utterly  the  three  objectors  failed  to  read  the  future,  is  shown 
by  the  prophecy  of  Mason  that  "  the  dangerous  power  and  structure 
of  the  government "  would  "  end  either  in  monarchy  or  a  tyrannical 
aristocracy;  which,  he  was  in  doubt,  but  one  or  the  other  he  was 
sure."  ' 

*  Mr.  Madison  closes  his  report  of  the  debates  of  the  Convention  with  this 
paragraph:  "Whilst  the  last  members  were  signing,  Dr.  Franklin,  looking 
towards  the  president's  chair,  at  the  back  of  which  a  rising  sun  happened  to  be 
painted,  observed  to  a  few  members  near  him  that  painters  had  found  it  dif- 
ficult to  distinguish  in  their  art  a  rising  from  a  setting  sun.  '  I  have,'  said  he, 
'  often  and  often  in  the  course  of  the  session,  and  the  vicissitudes  of  my  hopes 
and  fears  as  to  its  issue,  looked  at  that  behind  the  president  without  being 
able  to  tell  whether  it  was  rising  or  setting;  but  now,  at  length  I  have  the  hap- 
piness to  know  that  it  is  a  rising  and  not  a  setting  sun  '." — Elliot,  Debates, 
Vol.   v.,  p.   565. 


THE  CONSTITUTION  FRAMED. 


105 


201.  Records  and  Reports. — Just  before  adjourning,  the  Con- 
vention, in  response  to  a  question  by  its  president  as  to  the  disposi- 
tion to  be  made  of  the  Journal  and  other  papers,  voted  that  they 
should  all  be  intrusted  to  him,  subject  to  the  order  of  Congress  if 
ever  organized  under  the  Constitution.  In  March,  1796,  Washington 
deposited  the  manuscript  volumes  containing  them  in  the  State  De- 
partment. Mr.  Madison,  besides  bearing  an  able  part  in  the  pro- 
ceedings, took  copious  notes  of  the  discussions,  which  constitute  the 
only  existing  report  covering  the  whole  period  of  the  Convention, 
and  the  principal  sources  of  information  on  the  subject. 


CHAPTER  X. 

RATIFICATION  OF  THE  CONSTITUTION 

References. 

Bancroft,  Vol.  VI.  ("The  Formation  of  the  American  Constitu- 
tion," IV.,  V.)  ;  Hildreth,  Vol.  III.;  Winsor,  Vol.  VII.,  Chap.  IV.; 
Frothingham,  Chap.  XII.;  Pitkin,  Chap.  XVIII. ;  Hart,  Chap.  VI.; 
Johnston,  "  Constitution  of  the  U.  S.,"  I.-IIL,  in  Lalor,  and  The 
United  States,  V.;  Fiske,  The  Critical  Period  of  American  History; 
McMaster,  Vol.  I.,  Chap.  V.;  Story,  Book  III.,  Chap.  I.;  Smith, 
"  The  Movement  Towards  a  Second  Constitutional  Convention  in 
1788,"  in  Essays  in  the  Constitutional  History  of  the  U.  S.,  edited 
by  J.  F.  Jameson. 

Elliot's  Debates,  Vols.  II.-IV.  These  three  volumes  contain  the 
reports  of  the  debates  in  the  State  conventions  called  to  ratify  the 
Constitution.     See  also  Journals  of  Congress,  Vol.  IV. 

202.  Constitution  Sent  to  Congress. — The  Constitution 
reached  Congress  September  20,  1787,  accompanied  by  the 
two  resolutions  and  the  address  that  the  Convention  had 
adopted.    This  is  the  first  of  the  two  resolutions : 

"  Resolved,  That  the  preceding  Constitution "  be  laid  be- 
fore the  United  States  in  Congress  assembled,  and  that  it  is 
the  opinion  of  this  Convention  that  it  should  afterwards 
be  submitted  to  a  convention  of  delegates,  chosen  in  each 
State  by  the  people  thereof,  under  the  recommendation  of 
its  Legislature,  for  their  assent  and  ratification ;  and  that 
each  convention  assenting  to  and  ratifying  the  same,  should 
give  notice  thereof  to  the  United  States  in  Congress  assem- 
bled." 

203.  Action  of  Congress. — The  Articles  of  Confedera- 
tion provided  that  no  alteration  should  at  any  time  be 
made  in  them  unless  it  were  first  agreed  to  in  Congress,  and 

were  afterwards  confirmed  by  the  legislature  of  every  State. 

(106) 


RATIFICATION  OF  THE  CONSTITUTION.  107 

The  document  that  had  been  framed  and  now  lay  on  the  table 
was  not  a  series  of  alterations  in  the  Articles,  but  a  wholly 
new  constitution ;  moreover,  this  constitution  did  not  ema- 
nate from  the  States,  as  the  Articles  had  done,  but  from  the 
people  of  the  United  States ;  while  the  last  article  ran :  "  The 
ratification  of  the  conventions  of  nine  States  shall  be  suffi- 
cient for  the  establishment  of  this  Constitution  between  the 
States  so  ratifying  the  same."  The  Convention  did  not  ask 
Congress  to  agree  to  anything,  but  only  to  send  the  Consti- 
tution to  the  States,  and  await  their  action.  An  attempt 
was  now  made  under  the  leadership  of  Richard  Henry  Lee, 
of  Virginia,  to  have  Congress  propose  amendments,  but  this 
failed.  Had  it  succeeded,  some  States  would  have  ratified 
the  Constitution  as  framed  by  the  Convention,  and  some 
the  Constitution  as  amended  by  Congress,  and  so  it  would 
have  failed  altogether. 

September  29  Congress  adopted  this  resolution  by  a 
unanimous  vote: 

"  That  the  said  report,  namely  the  Constitution  with 
the  resolutions  and  the  letter  accompanying  the  same,  be 
transmitted  to  the  several  Legislatures,  in  order  to  be  sub- 
mitted to  a  convention  of  delegates  chosen  in  each  State  by 
the  people  thereof,  in  conformity  to  the  resolves  of  the 
Convention  made  and  provided  in  that  case." 

204.  Reception  of  the  Constitution. — The  Convention 
had  succeeded  in  keeping  its  secrets.  No  part  of  the  Con- 
stitution passed  its  doors  until  it  had  completed  its  work 
and  adjourned.  Immediately  on  its  publication,  the  country 
was  thrown  into  a  fever  of  excitement  that  continued  to 
increase  until,  almost  a  year  later,  the  eleventh  State  had 
given  its  ratification.  The  press  'teemed  with  pamphlets, 
books,  essays,  broadsides,  articles,  poems,  letters,  allegories, 
and  squibs.  The  land  resounded  with  speeches.  At  first 
there  were  three  classes  of  men :  the  friends  of  the  new  plan, 
its  enemies,  and  those  who  had  not  made  up  their  minds.  Its 
ratification  was  due  in  the  end  to  the  fact  that  the  first  class 
were  able  to  convert  the  majority  of  the  third  one. 


Io8  THE  AMERICAN  GOVERNMENT. 

205.  Friends  of  the  Constitution. — Mr.  Curtis  divides 
the  friends  of  the  Constitution  into  three  classes:  (i)  a 
large  body  of  men  who  recognized  in  the  Constitution  the 
admirable  system  which  it  proved  to  be  when  put  into  oper- 
ation; (2)  men  who  believed  it  to  be  the  best  attainable  gov- 
ernment, overlooking  defects  which  they  acknowledged,  or 
trusting  to  the  power  of  amendment;  and  (3)  the  mercantile 
and  manufacturing  classes,  who  regarded  the  commercial 
and  revenue  powers  with  great  favor.^ 

206.  Its  Enemies. — The  same  writer  divides  the  enemies 
of  the  Constitution  into  four  classes:  (i)  those  who  had 
always  opposed  any  enlargement  of  the  federal  system;  (2) 
those  whose  consequence  as  politicians  would  be  diminished 
by  the  establishment  of  a  government  able  to  attract  to  its 
service  the  highest  classes  of  talent  and  character;  (3)  those 
who  conscientiously  believed  its  provisions  and  powers  dan- 
gerous to  the  rights  of  the  States  and  to  the  public  liberty ; 
and  (4)  those  who  were  opposed  to  any  government,  State 
or  National,  that  would  have  vigor  or  energy  enough  to 
protect  the  rights  of  property,  to  prevent  schemes  of  plunder 
in  the  form  of  paper  money,  and  to  bring  about  the  dis- 
charge of  public  and  private  debts,^ 

207.  Arguments  against  the  Constitution. — The  old 
arguments  against  strengthening  the  government  were  all 
revamped  and  many  new  ones  invented.  But  the  main  ob-. 
jections  sprang  from  the  old  root,  the  antagonism  involved 
in  the  dual  system  inherited  from  Colonial  times.  Most 
Americans  now  living  have  thoroughly  adjusted  the  two 
loyalties  and  the  two  patriotisms,  but  in  1787  few  had  made 
that  adjustment.  Moreover,  National  feeling  was  then 
weak.  State  feeling  strong.  A  collection  of  arguments  sober- 
ly advanced  in  opposition  to  the  Constitution  could  be 
made,  that  to-day  would  be  most  amusing. 

208.  No  Bill  of  Rights. — Most  of  the  State  constitutions 


*  History  of  the  Constitution,  Vol.  II.,  p.  495. 
•Ibid.,  Vol.  II.,  p.  496. 


RATIFICATION  OF  THE  CONSTITUTION.  109 

contained  bills  of  rights.  They  consisted  of  propositions, 
mainly  copied  from  the  great  English  charters,  asserting 
certain  civil  rights  as  belonging  to  the  people.  A  motion 
for  a  committee  to  prepare  such  a  bill  to  accompany  the 
Constitution  had  been  lost  in  the  Convention.  But  when 
the  Constitution  came  before  the  people  for  their  ratification, 
the  strongest  attack  was  made  at  this  point.  The  omission 
of  such  a  bill  was  declared  a  fatal  defect.  The  "  little 
despised  things  called  maxims  "  were  declared  to  be  the  real 
safeguards  of  freedom.  Mr.  Hamilton  replied  to  this  criti- 
cism that  bills  of  rights  are  by  their  nature  contracts  between 
kings  and  their  subjects,  abridgments  of  prerogative  in 
favor  of  privilege,  reservations  of  rights  not  surrendered  to 
the  prince;  that  they  have  no  application  to  constitutions 
professedly  founded  upon  the  power  of  the  people  and  exe- 
cuted by  their  representatives  and  servants;  that,  in  a  re- 
public, the  people  surrender  nothing;  that  the  preamble  of 
the  Constitution  is  a  much  better  recognition  of  popular 
rights  than  volumes  of  such  aphorisms  as  commonly  com- 
posed bills  of  rights.^  It  was  also  contended  that  the  Con- 
stitution itself  was  a  bill  of  rights  in  every  rational  sense, 
and  to  every  useful  purpose;  also  that  the  State  bills  of 
rights  would  still  be  in  force,  and  that  they  would  prove  all- 
sufficient. 

209.  State  Conventions  Called. — The  Convention  rec- 
ommended that  the  Constitution  be  sent  for  ratification  to 
State  Conventions  elected  by  the  people,  and  not  to  the  legis- 
latures, because  it  was  virtually  a  National  system,  and  trot 
a  confederacy.  Besides,  conventions  called  for  this  special 
purpose  would  give  a  much  better  opportunity  for  calm  and 
thorough  discussion  than  the  legislatures.  The  legislature 
of  Rhode  Island  alone  refused  to  comply,  but-  submitted  the 
Constitution  to  a  popular  vote,  which  could  not  affect  the 
issue  one  way  or  the  other. 

210.  Conditional  Ratification  Proposed. — The  Conven- 

»  The  Federalist,  No.  84. 


I  lo  THE  AMERICAN  GOVERNMENT. 

tion  had  scarcely  adjourned  when  there  began  a  most  de- 
termined attempt  to  have  the  ratifications  made  conditional. 
More  definitely,  tlje  plan  was  to  have  the  State  conventions 
propose  amendments  to  be  referred  to  a  second  General 
Convention,  and  then  ratify  the  Constitution,  provided  these 
amendments  were  adopted,  or  at  least  considered.    The  sup- 
porters of  the  Constitution  said  the  true  plan  was  to  ratify 
first,  and  leave  amendments  to  the  machinery  of  the  Consti- 
tution itself. 
ilkAM  ^«-^   ^^^'    "^^^  First  Ratifications. — Delaware  led  the  way, 
^  H  \J  {    ^^^^^y^^S   unanimously,    December   7,    1787.      Pennsylvania 
( '  •    followed,  December  12,  with  a  vote  of  46  to  23.    Then  came 
«*''-«'' — '      New  Jersey,  the  i8th  of  the  same  month,  with  a  unanimous 
4^cc^..(.^    vote.    Georgia  also  was  unanimous,  January  2,  1788.    Con- 
vtc^  U-i-ftJiecticut  ratified  the  9th  of  the  same  month  by  a  vote  of  128 
xi.  ^curf^^  4°-     '^^^  Massachusetts  convention  came  next  in  order, 

f  ^and  there  the  first  determined  battle  was  fought. 
*^«f  212.  The  Massachusetts  Plan. — The  Massachusetts 
convention  was  the  sixth  to  act.  Here  the  opposition  were 
determined  that  the  Constitution  should  not  go  into  opera- 
tion until  it  had  been  referred,  with  amendments,  to  a 
second  General  Convention  for  revision.  At  last  this  plan, 
which  came  to  be  called  the  "  Massachusetts  plan,"  was 
agreed  upon:  The  convention  should  unconditionally  rat- 
ify, but  recommend  to  the  favorable  consideration  of  Con- 
gress certain  amendments.  Upon  this  plan  a  majority  was 
obtained  after  a  month's  debate.  The  vote  was  taken  Feb- 
ruary 6,  1788,  and  stood  187  to  168.  The  friends  of  the 
Constitution  in  several  other  States  overcame  the  opposition 
by  following  the  example  set  by  Massachusetts.  Without 
this  mode  of  procedure,  it  is  highly  probable  that  the  Con- 
stitution would  have  failed  altogether. 

213.  The  Remaining  Ratifications. — Maryland  voted 
63  to  II,  April  28;  South  Carolina,  149  to  73,  May  23. 
The  New  Hampshire  convention  at  its  first  session  could 
not  come  to  a  decision,  but  at  the  second  one,  June  21,  gave 
57  votes  for  and  46  against  the  Constitution.    This  was  the 


RATIFICATION  OF  THE  CONSTITUTION.  m 

ninth  ratification  and  made  the  Constitution  vahd  in  re- 
spect to  the  nine  States.  Virginia  gave  her  approval  after 
a  protracted  and  bitter  resistance,  June  25,  89  yeas  to  79 
nays.  New  York,  at  the  end  of  a  long  struggle,  and  more 
determined  than  that  in  Virginia,  July  26,  gave  the  narrow 
majority  of  three  in  a  total  vote  of  57.  To  secure  even  this 
small  majority,  the  friends  of  the  Constitution  were  com- 
pelled to  agree  to  a  recommendation  that  a  second  Federal 
Convention  should  be  called,  to  act  upon  the  amendments 
that  had  been  or  should  be  proposed.  This  was  the  last 
ratification  until  the  new  government  had  been  some 
months  in  operation.  The  first  North  Carolina  convention, 
by  a  decisive  vote,  refused  to  ratify  until  a  second  Federal 
Convention  should  be  called;  the  second  one,  November 
21,  1789,  ratified  by  a  majority  of  11.  The  Rhode  Island 
ratification  was  not  given  until  May  29,  1790,  and  then 
only  by  a  vote  of  34  to  32.  As  rapidly  as  they  were  made, 
the  ratifications  were  transmitted  to  Congress. 

214.  Washington  and  Ratification. — ^Washington  expressed  his 
views  as  to  the  scheme  to  defer  ratification  in  the  strongest  terms. 
"  Clear  I  am,"  said  he,  "  if  another  Federal  Convention  is  attempted, 
that  the  sentiments  of  the  members  will  be  more  discordant  or  less 
accommodating  than  the  last.  In  fine,  they  will  agree  on  no  general 
plan.  General  government  is  now  suspended  by  a  thread ;  I  might 
go  further  and  say  it  is  at  an  end ;  and  what  will  be  the  consequence 
of  a  fruitless  attempt  to  amend  the  one  which  is  offered  before  it  is 
tried,  or  of  the  delay  of  the  attempt,  does  not,  in  my  opinion,  need 
the  gift  of  prophecy  to  predict.  The  Constitution  or  disunion  is  be- 
fore us  to  choose  from.  If  the  first  is  our  election,  when  the  defects 
of  it  are  experienced,  a  constitutional  door  is  open  for  amendments, 
and  may  be  adopted  in  a  peaceable  manner,  without  tumult  or  disor- 
der." Moreover,  the  popular  conviction  that  he  was  sure  to  be 
chosen  to  preside  over  the  inauguration  of  the  new  government  was 
a  great  factor.  With  him  the  interests  of  the  people  would  be  safe. 
Monroe  wrote  to  Jefferson,  "  Be  assured  Washington's  influence 
carried  this  government."  • 

215.  Patrick  Henry. — The  distinguished  orator  Patrick  Henry 
had  refused  a  seat  in  the  Federal  Convention,  but  accepted  one  in 
the  Virginia  convention  called  to  ratify  the  Constitution ;  and  his 
course  there  well  illustrates  the  most  determined  opposition  that 


112  THE  AMERICAN  GOVERNMENT. 

was  made.  "  He  could  not  endure,"  it  has  been  said,  "  the  thought 
of  a  government  external  to  that  of  Virginia,  and  yet  possessed  of 
the  power  of  direct  taxation  over  the  people  of  the  State.  He  re- 
garded with  utter  abhorrence  the  idea  of  laws  binding  the  people  of 
Virginia  by  the  authority  of  the  people  of  the  United  States;  and 
thinking  that  he  saw  in  the  Constitution  a  purely  national  and  con- 
solidated government,  and  refusing  to  see  the  federal  principle 
which  its  advocates  declared  was  incorporated  in  its  system  of  rep- 
resentation, he  shut  his  eyes  resolutely  upon  all  the  evils  and  defects 
of  the  Confederation,  and  denounced  the  new  plan  as  a  monstrous 
departure  from  the  only  safe  construction  of  a  Union.  He  belonged 
too,  to  that  school  of  public  men — some  of  whose  principles  in  this 
respect  it  is  vain  to  question — who  considered  a  bill  of  rights  essen- 
tial in  every  republican  government  that  is  clothed  with  powers  of 
direct  legislation."* 

216.  Foreshadowings  of  Political  Parties. — In  the  conflict  at- 
tending the  establishment  of  the  Constitution,  the  beginnings  of  the 
future  political  parties  appeared.  They  arose  out  of  the  absorbing 
question  of  the  times — the  expansion  of  the  National  Government. 
The  names  "  national,"  pertaining  to  a  nation,  and  "  federal,"  per- 
taining to  a  foedus,  federation,  or  league,  justly  describe  the  two 
parties  that  divided  the  country  in  1787.  These  parties  survived  that 
struggle,  although  there  was  some  changing  of  sides  and  of  names. 
The  Nationalists  now  assumed  the  name  Federalists,  because  they 
favored  the  ratification  of  the  Federal  Constitution,  and  the  Federal- 
ists became  Anti-federalists,  because  opposed  to  such  ratification.  A 
few  years  later  believers  in  loose-construction  were  called  Federal- 
ists, while  believers  in  strict-construction  called  themselves  Repub- 
licans and  Democratic-Republicans.  Change  of  name  did  not  imply 
a  necessary  change  of  principle.  Hamilton  and  Madison  were  Na- 
tionalists in  1787,  because  they  favored  strengthening  the  govern- 
ment; they  were  Federalists  in  1788,  because  they  favored  ratifying 
the  Federal  Constitution ;  afterwards  they  separated,  the  first  becom- 
ing a  Federalist  and  the  second  a  Democratic-Republican,  because 
they  did  not  agree  as  to  the  powers  of  the  government  under  the 
Constitution.  Again,  Patrick  Henry  was  a  Federalist  in  1787,  an 
Anti-federalist  in  1788,  and  a  Federalist  again  after  the  government 
was  put  in  operation. 

217.  Course  of  History  Reviewed. — In  the  preceding  history 
two  things  stand 'out  with  prominence.  One  is  that  it  was  the  rati- 
fications of  the  State  conventions,  speaking  the  voice  of  the  people, 
which  gave   the   Constitution  all  its  binding  force.    Or,  as  Chief- 

*  Curtis,  History  of  the  Constitution,  Vol.  II.,  p.  554. 


RATIFICATION  OF  THE  CONSTITUTION.  113 

Justice  Marshall  said :  "  From  these  conventions  the  Constitution 
derives  its  whole  authority."  The  other  is  that  the  adoption  of  the 
Constitution  and  the  inauguration  of  the  new  government  together 
composed  a  political  revolution.  The  Articles  of  Confederation  pro- 
vided in  express  terms  how  the  government  established  in  1775,  and 
confirmed  in  1781,  should  be  changed,  and  these  provisions  were 
disregarded  in  every  particular.'  Thus  the  new  order  of  things  was 
a  peaceful  revolution  enacted  by  the  sovereign  people. 

Note. —  Alexander  Hamilton  had  been  very  influential  in  bringing  about  the 
Federal  Convention  of  which  he  was  also  a  member.  Of  all  the  members  of  that 
body,  he  believed  in  a  strong  government,  but  he  cheerfully  signed  the  Consti- 
tution on  the  ground  that  it  was  impossible  to  deliberate  between  anarchy  on  the 
one  side  and  the  chance  of  good  government  on  the  other.  The  Convention 
over,  Hamilton  threw  himself  into  the  ratification  struggle,  and  without  him 
ratification  would  have  failed  in  New  York,  and  possibly  in  other  states.  He 
conceived  the  idea  of  a  series  of  ess.iys  to  explain  to  the  public  what  the  Con- 
stitution really  was,  and  called  to  his  side  Jay  and  Madison  to  aid  in  its  execu- 
tion. These  essays  are  collectively  known  as  The  Federalist,  of  which  he 
wrote  much  the  larger  number.  They  were  widely  published  and  read,  and 
had  great  influence.  The  Federalist  was  projected  for  a  temporary  purpose,  but 
it  proved  to  be  the  best  commentary  on  the  Constitution  ever  written. 


'See  Cooley,  Principles  of  Constitutional  Law,  p.    16. 


AM.  GOV. — a 


CHAPTER  XL 

THE  CONSTITUTION  GOES  INTO  OPERATION. 

References. 

Bancroft,  Vol.  VI.  ("The  Formation  of  the  American  Constitu- 
tion," V.)  ;  Hildreth,  Vol.  III. ;  Pitkin,  Chap.  XX. ;  McMaster,  Vol. 
I.,  Chap.  VI.;  Hart,  Chap.  VII. ;  Fiske,  Critical  Period  of  American 
History. 

Annals  of  Congress,  Vol.  I. ;  Benton,  Abridgment  of  the  Debates 
of  Congress,  Vol.  I. ;  Lanman,  History  of  Congress,  1789  to  1793, 
Chap.  I. ;  U.  S.  Statutes  at  Large. 

218.  Second  Resolution  of  the  Convention. — The  sec- 
ond resolution  of  the  Federal  Convention  (p.  106)  related 
to  putting  the  Constitution  into  operation,  and  was  in  these 
words : 

"  That  it  is  the  opinion  of  this  Convention  that  as  soon 
as  the  Conventions  of  nine  States  shall  have  ratified  this 
Constitution,  the  United  States  in  Congress  assembled 
should  fix  a  day  on  which  Electors  should  be  appointed  by 
the  States  which  shall  have  ratified  the  same,  and  a  day  on 
which  the  Electors  should  assemble  to  vote  for  the  Presi- 
dent, and  the  time  and  place  for  commencing  proceedings 
under  this  Constitution.  That  after  such  publication,  the 
Electors  should  be  appointed  and  the  Senators  and  Repre- 
sentatives elected.  That  the  Electors  should  meet  on  the 
day  fixed  for  the  election  of  the  President,  and  should  trans- 
mit their  votes  certified,  signed,  sealed,  and  directed,  as 
the  Constitution  requires,  to  the  Secretary  of  the  United 
States  in  Congress  assembled;  that  the  Senators  and  Rep- 
resentatives should  convene  at  the  time  and  place  assigned ; 
that  the  Senators  should  appoint  a  president  of  the  Senate 
for  the  sole  purpose  of  receiving,  opening,  and  counting 
the  votes  for  President,  and  that,  after  he  shall  be  chosen, 

(114) 


THE  CONSTITUTION  GOES  INTO  OPERATION.      115 

the  Congress,  together  with  the  President,  should,  without 
delay,  proceed  to  execute  this  Constitution," 

219.  Action  of  Congress. — On  July  2,  1788,  the  ratifica- 
tion of  New  Hampshire  was  received,  and  the  president 
called  the  attention  of  Congress  to  the  fact  that  this  was 
the  ninth  ratification.  Whereupon  it  was  ordered :  "  That 
the  ratifications  of  the  Constitution  of  the  United  States, 
transmitted  to  Congress,  be  referred  to  a  committee  to  ex- 
amine the  same,  and  report  an  act  to  Congress  for  putting 
the  said  Constitution  into  operation,  in  pursuance  of  the 
resolutions  of  the  late  Federal  Convention,"  On  the  14th 
of  the  same  month  the  committee  reported,  and  September 
13th,  Congress  adopted  the  following  resolution: 

"  That  the  first  Wednesday  in  January  next  be  the  day 
for  appointing  Electors  in  the  several  States,  which,  before 
the  said  day,  shall  have  ratified  the  said  Constitution;  that 
the  first  Wednesday  in  February 'next  be  the  day  for  the 
Electors  to  assemble  in  their  respective  States  and  vote  for 
a  President;  and  that  the  first  Wednesday  in  March  next 
be  the  time,  and  the  present  seat  of  Congress  the  place,  for 
commencing  the  proceedings  under  the  said  Constitution,"^ 

220.  Appointment  of  Presidential  Electors. — The  new 
Constitution  said  each  State  should  appoint  the  num- 
ber of  Electors  to  which  it  was  entitled,  in  such  manner 
as  the  legislature  thereof  might  direct.  Ten  States  pro- 
ceeded on  the  day  appointed,  January  7,  to  discharge  this 
duty.  New  York  made  no  appointments,  owing  to  a  dis- 
pute between  the  two  houses  of  the  legislature  as  to  the 
manner  in  which  it  should  be  done;  while  Rhode  Island 
and  North  Carolina  had  not  ratified  the  Constitution,  and 
so  had  no  part  in  the  first  presidential  election. 

221.  First  Meeting  of  the  New  Congress. — Even  after 
the   ratification  of  the   Constitution  by  nine  States,  many 

*  It  happened  that  the  first  Wednesday  in  March,  1789,  was  the  4th  of  that 
month,  which  day  has  since  marked  the  beginning  of  the  successive  administra- 
tions and  Congresses,  and  since  1804  has  been  a  part  of  the  Constitution  itself. 
(Amendment  XII.)  Congress  was  sitting  in  New  York  when  the  above  action 
was  taken,  and  it  was  there  that  the  new  government  was  organized. 


Il6  THE  AMERICAN  GOVERNMENT. 

people,  some  of  them  its  ardent  friends,  had  doubts  whether 
it  would  ever  go  into  operation.  They  were  far  from  sure 
that  there  was  enough  popular  interest  to  secure  the  appoint- 
ment or  election  of  Electors,  Representatives,  and  Senators. 
That  their  fears  were  not  without  reason,  is  shown  by  the 
circumstances  attending  the  organization  of  Congress. 
Thirteen  members  of  the  House  of  Representatives,  repre- 
senting four  States,  reported  for  duty  March  4;  adjourn- 
ments were  had  from  day  to  day  until  April  i,  when  thirty 
members,  or  a  quorum,  being  present,  an  organization  was 
effected.  Eight  Senators  from  four  States  attended  March 
4.  The  Senate  also  adjourned  from  day  to  day  until  April 
6,  when,  twelve  members  being  present,  a  temporary  organi- 
zation was  effected  by  the  election  of  John  Langdon,  of 
New  Hampshire,  president,  for  the  sole  purpose  of  opening 
and  counting  the  votes  for  President  of  the  United  States. 
The  same  day,  the  two"  houses  of  Congress  met  in  the 
Senate  chamber  to  witness  the  counting  of  the  votes.  It 
was  found  that  Washington  had  been  elected  President  and 
John  Adams  Vice  President,  and  Mr.  Langdon  so  an- 
nounced. 

222.  Washington  Inaugurated.' — Messengers  were  at 
once  sent  to  the  President  and  Vice  President  elect,  con- 
veying official  information  of  their  election.  On  April  21 
Mr.  Adams  appeared  in  the  Senate  chamber,  took  the  chair, 
and  made  an  address  appropriate  to' the  occasion.  The  30th 
of  the  same  month  Washington  took  the  oath  of  office 
prescribed  by  the  Constitution,  delivering  an  inaugural 
address,  and  entered  upon  the  duties  of  his  great  office. 
Two  branches  of  the  government,  the  legislative  and  the 
executive,  were  now  in  motion ;  the  third,  the  judiciary,  had 
to  await  the  enacting  of  a  judiciary  law  and  the  appointment 
of  judges. 


PART  II. 

THE  NATIONAL  GOVERNMENT. 


CHAPTER  XII. 

THE  NATIONAL  AND  STATE  GOVERNMENTS. 

References. 

The  principal  authorities  for  the  second  part  of  this  work  are  here 
given  once  for  all.  They  are  practically  the  same  throughout,  and 
to  repeat  them  at  the  head  of  every  chapter  would  be  both  weari- 
some and  unnecessary.  Furthermore,  they  are  well-known  works, 
and  the  student  using  the  •  indexes  with  which  they  are  liberally 
furnished,  will  have  little  difficulty  in  finding  the  appropriate  pas- 
sages. Occasional  titles  will,  however,  be  given  as  heretofore,  and 
still  others  in  footnotes. 

L  Contemporary  Authorities. — Elliot's  Debates,  Vols.  L-V. 
The  first  of  these  volumes  contains  the  Journal  of  the  Federal  Con- 
vention, and  the  fifth  one  Mr.  Madison's  diary  of  the  debates. 
Vols.  n.-IV.,  which  report  the  debates  of  the  State  conventions, 
may  also  be  consulted  with  advantage.  Madison's  Diary  is  also 
found  in  The  Madison  Papers,  Vol.  III.  However,  the  great  con- 
temporary exposition  of  the  Constitution  is  The  Federalist. 

II.  Text-Writers  on  Constitutional  Law. — Story,  Commen- 
taries on  the  Constitution  of  the  U.  S.;  Kent,  Commentaries  on 
American  Law,  Part  II. ;  Pomeroy,  Introduction  to  the  Constitu- 
tional Law  of  the  U.  S.;  Hare,  American  Constitutional  Law;  Mil- 
ler, Lectures  on  the  Constitution  of  the  U.  S.;  Von  Hoist,  The 
Constitution  of  the  U.  S.  of  America;  Cooley,  Constitutional  Limi- 
tations, and  Principles  of  Constitutional  Law.  The  first  of  the  two 
works  by  Judge  Cooley  is  practically  a  treatise  on  the  constitutional 

(117) 


Il8        •  THE  AMERICAN  GOVERNMENT. 

law  of  the  States;  the  second  one  should  be  in  the  hands  of  every 
teacher  of  the  Constitution. 

III.  The  United  States  Supreme  Court  Reports. — These  are 
found  in  more  than  150  volumes,  and  are  referred  to  in  every  case 
save  the  last  series  by  the  name  of  the  Reporter:  Dallas  4  vols., 
Cranch  9,  Wheaton  12,  Peters  16,  Howard  24,  Black  2,  Wallace  23, 
U.  S.  60  and  more.  Whenever  a  decision  of  the  court  is  referred 
to  in  this  work,  the  appropriate  citation  is  made. 

IV.  History. — ^Von  Hoist,  Constitutional  and  Political  History 
of  the  United  States  (a  series  of  10  volumes  covering  the  period 
1750-1861)  ;  Hildreth,  History  of  the  U.  S.,  Vols.  IV.-VI.  (coming 
down  only  to  1820)  ;  Landon,  Constitutional  History  and  Govern- 
ment of  the  U.  S.;  Schouler,  History  of  the  U.  S.;  McMaster,  His- 
tory of  the  People  of  the  U.  S.;  Pitkin,  Political  and  Civil  History 
of  the  U.  S.,  Chaps.  XX.-XXV. ;  Bancroft's  and  Curtis's  histories 
of  the  Constitution;  volumes  of  The  American  Statesmen  Series. 
The  teacher  will  find  Johnston's  United  States,  VI.-XI.,  his  History 
of  American  Politics,  and  his  historical  articles  in  Lalor's  Cyclo- 
pedia very  helpful,  Bryce's  The  American  Commonwealth  is  sec- 
ond in  value  to  no  work  that  has  been  written  on  the  American 
Government. 

V.  Miscellaneous. — U.  S.  Statutes  at  Large;  Congressional  De- 
bates, Annals  of  Congress,  and  Congressional  Record;  Desty,  The 
Constitution  of  the  U.  S.  -with  notes,  and  Manual  of  Practice  in  the 
Courts  of  the  U.  S.  with  notes  on  Decisions. 

How  the  American  Government  was  made,  has  been 
described  at  sufficient  length  in  Part  I.  of  this  work. 
This  description  has  also  made  it  plain  that  the  United 
States  are  a  federal  state,  or  Bimdesstaat,  and  that  their 
government  is  a  federal  government.  Light  has  also  been 
thrown  upon  the  National  and  State  sides  of  the  dual 
system  and  upon  their  relations  to  each  other.  It  now 
becomes  our  duty  formally  to  describe  the  two  govern- 
ments that  together  constitute  the  one  American  Govern- 
ment, Shall  we  begin  with  the  Nation  or  shall  we  begin 
with  the  States?  The  answer  to  this  question  will  not  be 
doubtful  when  we  have  considered  the  two  jurisdictions 
under  a  single  aspect. 

223.     Priority  of  the  States. — Federal  states  have  com- 
monly  been    formed    by    uniting   plural   states    previously 


THE  NATIONAL  AND  STATE  GOVERNMENTS.      119 

existing,  not  by  dividing  unitary  states.  Such  was  the 
history  of  the  American  state.  The  colonies  as  political 
societies  came  before  the  United  States  as  a  political  society. 
Their  governments,  dating  from  the  origin  of  the  English 
plantations,  were  some  of  them  more  than  a  century  and  a 
half  old  when  the  national  government  came  into  existence. 
These  facts,  which  have  sometimes  confused  the  work  of 
political  theorists,  are  never  to  be  forgotten.  (See  Chaps. 
I.-IV.) 

224.  First  Division  of  Powers. — Previous  to  the  Revo- 
lution, the  totality  of  governmental  powers  was  possessed 
by  the  colonies  and  the  home  government,  sovereignty  re- 
siding in  the  latter.  The  separation  of  the  colonies  from  the 
mother  country,  which  practically  took  place  in  1775,  in- 
volved the  withdrawal  of  all  such  powers  from,  or  their 
denial,  to  her.  At  the  same  time  that  this  withdrawal  or  de- 
nial was  made,  the  totality  of  powers  was  divided  —  by  gen- 
eral agreement,  however,  rather  than  by  formal  convention 
—  between  the  colonies,  which  now  became  States,  and  the 
Union.  In  other  words,  the  General  Congress  of  the  States, 
acting  in  the  name  of  the  one  people,  assumed  the  exercise 
of  certain  powers  that  were  at  the  time  deemed  essential 
for  the  common  defense,  and  this  assumption  was  ratified 
by  the  acquiescence  of  the  States  and  by  the  American  peo- 
ple. For  some  years  this  distribution  rested  upon  a  pure- 
ly prescriptive  basis,  but  in  1781  it  was  incorporated,  with 
little  change,  in  the  Articles  of  Confederation.  (See  Chaps. ^ 
IV.-VI.) 

225.  Second  Division  of  Powers. — The  first  distribution 
proving  unsatisfactory,  a  second  one  was  made  in  1787-89* 
This  second  distribution  of  powers  was  eflFected  by  the  fram- 
ing and  ratification  of  the  Constitution,  which  still  stands, 
so  far  as  a  written  constitution  can  be  said  to  "  stand,"  save 
as  modified  by  the  fifteen  Amendments.  These  Amend- 
ments, it  may  be  observed,  sometimes  extend  the  original 
grant  of  powers,  as  XIII.,  XIV.,  XV. ;  sometimes  more 
closely  limit  or  define  that  grant,  as  I.-XL,  and  sometimes 


120  THE  AMERICAN  GOVERNMENT. 

merely  change  the  mode  in  which  an  old  power  is  exercised, 
as  XII. 

226.  Inherent  and  Delegated  Powers. — The  circum- 
stances under  which  the  Union  originated  necessarily  in- 
volved one  distinction  between  the  Nation  and  the  State 
that  must  not  be  overlooked.  The  powers  exercised  by 
the  State  government  are  never  called  grants  or  delegations 
of  power,  while  those  exercised  by  the  Nation  are  so 
styled.  The  States  are  therefore  said  to  possess  original  or 
inherent  powers,  the  Nation  granted  or  delegated  powers. 
This  distinction  dates  from  the  formation  of  the  Union. 
The  Articles  of  Confederation  reserved  to  the  States  all 
rights  and  powers  that  were  not  "  expressly  delegated  "  to 
the  United  States.  The  powers  of  the  States  may  also  be 
called  residuary  powers. 

227.  The  Constitution  a  Grant  of  Powers. — The  Con- 
stitution, which  made  so  many  other  changes,  did  not 
touch  the  fundamental  distinction  that  has  been  explained. 
History  shows  that  the  Convention  of  1787  intended  to 
proceed  on  the  theory  of  delegated  powers ;  the  Constitu- 
tion assumes  it  throughout,  while  Amendments  IX.  and  X. 
declare  it  in  express  words,  as  follows : 

"  The  enumeration  in  the  Constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others  retained 
by  the  people." 

"  The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively,  or  to  the  people." 

228.  Phraseology  of  National  and  State  Constitutions. 
—  To  an  extent  the  National  and  State  constitutions  are 
written  in  different  political  vocabularies.  The  first  speaks 
the  language  of  delegated  powers ;  the  second  speaks  the 
language  of  inherent  powers.  Such  provisions  as  those 
quoted  above  are  peculiar  to  the  National  instrument.  Sec- 
tion 8,  Article  I.,  of  the  Constitution  comprises  an  enumera- 
tion of  the  general  powers  of  Congress ;  but  no  State  con- 
stitution contains  a  similar  enumeration.     Still,  it  must  not 


THE  NATIONAL  AND  STATE  GOVERNMENTS.     121 

be  supposed  that  the  powers  of  the  National  Government 
are  all  expressly  delegated. 

229.  Implied  Powers, — Expressed  powers  are  delegated 
in  terms ;  implied  powers  by  inference  and  necessity.  It 
would  be  absurd  to  speak  of  the  "  implied  "  powers  of  the 
State,  for  implication  always  goes  with  delegation.  The 
first  seventeen  clauses  of  Section  8,  referred  to  above,  con- 
vey express  grants  of  power,  while  the  last  clause,  by 
authorizing  Congress  "  to  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution  the  fore- 
going powers,  and  all  other  powers  vested  by  this  Constitu- 
tion in  the  government  of  the  United  States,  or  in  any  de- 
partment or  officer  thereof,"  plainly  recognizes  implied 
powers.  But  such  powers  would  still  exist  even  if  this 
clause  were  not  in  the  Constitution,  for  they  are  essential  to 
the  existence  of  the  government. 

Chief-Justice  Marshall  argued  in  one  of  his  greatest  opinions: 
"  We  admit,  as  all  must  admit,  that  the  powers  of  the  government 
are  limited,  and  that  its  limits  are  not  to  be  transcended ;  but  we 
think  the  sound  construction  of  the  Constitution  must  allow  to  the 
national  legislature  that  discretion  with  respect  to  the  means  b*y 
which  the  powers  it  confers  are  to  be  carried  into  execution,  which 
will  enable  that  body  to  perform  the  high  duties  assigned  to  it  in 
the  manner  most  beneficial  to  the  people.  Let  the  end  be  legitimate ; 
let  it  be  within  the  scope  of  the  Constitution,  and  all  means  which 
are  appropriate,  which  are  plainly  adapted  to  that  end,  which  are 
not  prohibited,  but  consist  with  the  letter  and  spirit  of  the  Constitu- 
tion, are  constitutional."* 

230.  Powers  Delegated,  Prohibited,  Reserved. — ^View- 
ing the  totality  of  political  powers  from  the  standpoint 
of  the  Constitution,  we  see  them  falling  into  the  follow- 
ing groups:  (i)  Powers  that  are  delegated  to  the  Union. 
(2)  Powers  that  are  prohibited  to  the  Union.  (3)  Powers 
that  are  prohibited  to  the  States.  (4)  Powers  that  are  re- 
served to  the  States  or  to  the  people.  This  fourth  group 
or  residue  of  powers,  their  original  possessors,  the  States  or 

*  McCuUoch  r.  Maryland,  4  Wheaton  316. 


122  THE  AMERICAN  GOVERNMENT. 

the  people,  deal  with  as  they  see  fit  when  they  frame  their 
constitutions.^ 

231.  Concurrent  Powers. — The  division  of  powers  ac- 
complished in  1789  by  the  ratification  of  the  Constitution 
left  a  large  tract  of  political  territory,  so  to  speak,  open  to 
both  the  Union  and  the  States.  Accordingly,  the  two  juris- 
dictions overlap.  In  fact,  they  always  overlap  unless  the 
jurisdiction  of  the  Nation  excludes  the  jurisdiction  of  the 
State.  For  example,  Mr.  Justice  Story  says  a  reasonable 
interpretation  of  the  Constitution  necessarily  leads  to  the 
conclusion  that  the  powers  granted  to  Congress  are  never 
exclusive  of  similar  powers  existing  in  the  States,  unless 
(i)  "the  Constitution  has  expressly,  in  terms,  given  an  ex- 
clusive power  to  Congress;  "or  (2)  "  the  exercise  of  a  like 
power  is  prohibited  to  the  States;"  or  (3)  "there  is  a  direct 
repugnancy  or  incompatibility  in  the  exercise  of  it  by  the 
States."  ^  Taxation  well  illustrates  this  concurrent  juris- 
diction. The  Constitution  gives  Congress  the  most  ample 
revenue  powers,  but  it  denies  to  the  States  only  the  laying 
of  customs  duties  and  duties  on  tonnage.  Congress  is  em- 
powered to  levy  internal  taxes,  and  the  States  are  not  for- 
bidden to  do  so.     The  whole  field  of  internal  taxation  is  open 


^Mr.  C.  G.  Tiedeman   (.The  Unwritten  Constitution  of  the  United  States, 
p.   138)   thus  illustrates  the  constitutional  provisions   in   regard  to  powers. 


"  Outer  circle  represents  totality  of  governmental  powers. 
"  Circle  A  =  powers  delegated  to  the  United  States. 
"  Circle  B  =  powers  reserved  to  the  states. 
"  Segment  C  =  concurrent  powers. 

"  Segment  D  =  powers  prohibited  to  both  branches  of  government. 
"  Segment  E  =  powers  prohibited  to  the  states,  but  neither  prohibited  nor 
delegated  to  the  United  States. 

*  Houston  V.  Moore,  2  Wheaton  259- 


THE  NATIONAL  AND  STATE  GOVERNMENTS.     123 

to  the  States,  as  well  as  to  the  Union.  Generally,  however, 
the  States  avoid  taxes  that  would  overlap  those  already  im- 
posed by  Congress,  lest  property  and  industry  be  unduly 
burdened.  In  some  cases  the  States  have  exercised  powers 
until  the  Nation  has  seen  fit  to  assume  them,  as  in  bank- 
ruptcy and  authorizing  paper  money. 

232.  Constitutional  Presumptions. — The  student  must 
approach  the  Union  and  the  States  in  quite  different  ways. 
The  presumption  changes  as  we  pass  from  the  one  to  the 
other.    Judge  Cooley  states  the  difference  in  these  words : 

"  To  ascertain  whether  any  power  assumed  by  the  gov- 
ernment of  the  United  States  is  rightfully  assumed,  the 
Constitution  is  to  be  examined  in  order  to  see  whether  ex- 
pressly or  by  fair  implication  the  power  has  been  granted." 

"  To  ascertain  whether  a  State  rightly  exercises  a  power, 
we  have  only  to  see  whether,  by  the  Constitution  of  the 
United  States,  it  is  conceded  to  the  Union,  or  by  that  Con- 
stitution or  that  of  the  State  prohibited  to  be  exercised  at 
all."  1 

233.  Method  of  Study. — It  is  therefore  clear  that  when 
the  American  people  finally  divided  the  powers  of  sover- 
eignty, they  made  the  States  what  may  be  called  their  resid- 
uary legatees.  They  delegated  the  most  imposing  powers 
—  those  that  constitute  sovereignty  in  the  eye  of  interna- 
tional law  —  to  the  Union,  and  left  the  remainder,  unless 
denied  in  terms  or  by  implication,  to  their  former  holders. 
It  is  the  Nation,  therefore,  that  stands  out  with  boldness 
upon  the  political  background.  It*  is  the  Nation  that  arrests 
the  attention  and  appeals  to  the  imagination.  Accordingly, 
when  a  student  has  made  himself  familiar  with  so  much  of 
our  system  as  exists  and  works  under  his  own  eyes  —  which 
belongs  mainly  to  the  State  sphere  —  he  should  first  take  up 
the  National  Government,  leaving  the  States  for  later  study. 
The  excepted  or  delegated  powers  naturally  precede  the  re- 
siduary powers.     A  still  further  reason  for  observing  this 

*^  Principles  of  Constitutional  Law,  p.  31. 


124  THE  AMERICAN  GOVERNMENT. 

order  is,  that  there  are  as  many  State  constitutions  as  there 
are  States,  agreeing  indeed  in  their  most  prominent  features, 
but  still  differing  in  important  details;  while  the  study  of 
the  National  Constitution,  if  intelligently  carried  on,  will 
not  fail  to  illuminate  them  all,  thus  making  it  possible  to  dis- 
pose of  them  together  within  a  limited  compass  of  space. 


CHAPTER  XIII. 

THE  NATURE  OF  THE  CONSTITUTION. 

References. 

The  literature  on  the  nature  of  the  Constitution  is  very  volumi- 
nous. All  the  text  writers  mentioned  in  the  references  for  the  last 
chapter  treat  it  directly  and  the  historians  indirectly.  Clear  state- 
ments of  the  different  views  that  have  been  held,  will  be  found  in 
Professor  Alexander  Johnston's  articles  in  Lalor's  Cyclopcedia, 
bearing  the  following  titles:  "Congress,  Continental,"  "Declaration 
of  Independence,"  "  Nation,"  "  State  Sovereignty,"  "  Kentucky  Reso- 
lutions," "  Convention,  Hartford,"  "  Judiciary,"  "  Allegiance,"  "  Nul- 
lification," "  Secession,"  "  Reconstruction."  The  extreme  State 
Rights  view  is  stated  by  Calhoun,  Works,  Vol.  I.,  p.  iii.,  Vol.  II., 
pp.  197,  262,  Vol.  III.,  p.  140;  by  Jefferson  Davis,  Rise  and  Fall  of 
the  Confederate  Government;  and  by  A.  H.  Stephens,  The  War  Be- 
tween  the  States.  Madison's  view  is  stated  by  himself  in  The 
Federalist,  No.  89,  and  in  the  N.  A.  Review,  October,  1830.  For 
Webster's  view,  see  Works,  Vol.  III.,  pp.  270,  448 ;  for  Chief-Justice 
Marshall's,  see  McCuUoch  v.  the  State  of  Maryland,  4  Wheaton  316; 
for  Chief-Justice  Chase's,  see  Texas  v.  White,  7  Wallace  700. 

The  nature  of  the  Constitution  has  been  a  source  of  con- 
tention almost  from  the  day  that  our  present  government 
went  into  operation.  The  logic  of  history  from  the  estab- 
lishment of  the  English  Plantations  down  to  1787,  imposed 
upon  the  country  a  dual  form  of  government,  irrespective 
of  the  intrinsic  merits  of  such  a  system.  This  was  univer- 
sally admitted  at  the  time.  "  No  political  dreamer,"  says 
Chief- Justice  Marshall,  "  was  ever  wild  enough  to  think 
of  breaking  down  the  line  which  separated  the  States,  and 
compounding  the  American  people  into  one  mass."  The 
question  before  the  Federal  Convention  was  not  the  specu- 
lative one  relating  to  the  merits  of  federal  government,  but 
rather  the  practical  one  of  adjustment, —  committing  certain 

(125) 


126  THE  AMERICAN  GOVERNMENT. 

powers  of  government  to  the  States  and  others  to  the  Na- 
tion. What  was  the  nature  of  the  adjustment  that  was 
reached  ?  This  question  will  now  be  examined  in  its  general 
features,  leaving  minor  ones  to  be  considered  hereafter. 
First,  we  shall  look  at  contemporary  opinion. 

234.  View  of  the  National  Party. — The  principal  ques- 
tions that  arose  in  connection  with  the  framing  and  ratifi- 
cation of  the  Constitution,  and  the  answers  that  were  re- 
turned to  them,  are  set  forth  in  Chapters  VIII.-X.  The 
general  issue  was  whether  a  National  system,  or  a  federal 
state,  should  be  formed,  or  the  old  State  system,  or  Confed- 
eration, with  modifications,  should  be  continued.  That 
issue  was  decided  in  all  essential  points  in  favor  of  the  first 
plan.  The  plan  finally  adopted  embraced  a  government  of 
three  departments,  a  bicameral  legislature  clothed  with  ample 
powers,  and  an  efficient  executive  and  judiciary  —  in  a  word, 
a  government  that  at  all  points  where  the  National  will  was 
involved,  was  wholly  independent  of  the  State  governments, 
and  was  fully  equipped  to  execute  that  will  directly  upon 
the  people.  One  concession  was  made  to  the  Carolinas  and 
Georgia  in  relation  to  the  slave  trade,  one  to  the  agricultural 
States  in  regard  to  an  export  duty,  and  one  to  the  small 
States  of  an  equal  suffrage  in  the  Senate ;  but  no  one  of  the 
so-called  compromises  touched  the  heart  of  the  great  ques- 
tion at  issue.  While  the  men  who  favored  a  National  sys- 
tem were  obliged  to  concede  some  points  that  they  would 
rather  have  retained,  they  still  felt  at  the  close  of  their 
labors  that  they  had,  in  material  features,  secured  what  they 
desired.  Men  like  Paterson  and  Dickinson,  who  had  orig- 
inally favored  a  State  system,  understood  the  grand  result  in 
the  same  way.  This  was  also  the  understanding  of  the  men 
who  abandoned  the  Convention  before  it  adjourned,  and 
those  who  at  last  refused  to  sign  the  Constitution. 

235.  View  of  the  State  Party. — The  men  who  opposed 
the  Constitution  were  known  as  the  State  party.  They  op- 
posed it  on  the  express  ground  that  a  National  system  had 
been  formed.     The  Constitution  spoke  in  the  name  of  the 


THE  NATURE  OF  THE  CONSTITUTION.  127 

people,  the  Articles  of  Confederation  in  the  name  of  the 
States;  and  the  State  men,  hoping  to  create  prejudice  there- 
by, caught  at  the  change  of  style  and  strove  to  make  the 
most  of  it.  Patrick  Henry  demanded  in  the  Viriginia  con- 
vention, "  Why  the  change  from  '  we,  the  States,'  to  *  we, 
the  people '  ?  "  and  he  denounced  the  instrument  as  that  of  a 
consolidated  National  government.  Some  of  those  who  op- 
posed the  Constitution  on  the  ground  that  it  provided  for  a 
national  system,  or  federal  state,  a  few  years  later  united 
with  others  who  had  favored  it,  in  the  claim  that  it  was 
only  a  confederation,  and  in  forming  a  political  party  that 
was  based  on  that  idea.  Had  this  been  the  common  under- 
standing in  1787  and  1788,  those  who  favored  the  Consti- 
tution would  have  opposed,  and  those  who  opposed  it  would 
have  favored,  its  ratification. 

This  common  understanding  is  fully  sustained  when  we 
come  to  examine  the  instrument  itself. 

236.  The  Preamble. — The  first  clause  of  the  Constitu- 
tion is  commonly  called  the  preamble,  but  also  sometimes 
its  enacting  clause.  A  proper  preamble  gives  reasons  why 
a  resolution  or  act  is  passed,  and,  since  it  does  not  resolve, 
enact,  or  ordain  anything,  is  not  a  part  of  the  act  itself. 
An  enacting  clause,  on  the  other  hand,  gives  the  act  all  its 
force  and  effect.  If  the  following  declaration  were  nothing 
but  a  preamble,  it  could  be  cut  off  without  affecting  the  Con- 
stitution ;  but  on  the  contrary  it  is  an  integral  and  necessary 
part  of  the  instrument  itself.     It  is  in  these  words : 

We,  the  people  of  the  United  States,  in  order  to  form  a  more  per- 
fect union,  establish  justice,  insure  domestic  tranquillity,  provide  for 
the  common  defense,  promote  the  general  welfare,  and  secure  the 
blessings  of  liberty  to  ourselves  and  our  posterity,  do  ordain  and 
establish  this  Constitution  for  the  United  States  of  America. 

237.  Elements  of  the  Preamble. — The  preamble  con- 
sists of  three  elements: 

1.  The  name  of  the  nation,  people,  or  sovereign  power 
that  acts  or  speaks:     We,  the  people  of  the  United  States. 

2.  The  ends  or  objects  for  which  the  sovereign  power 


128  THE  AMERICAN  GOVERNMENT. 

acts  or  speaks :  ( i )  In  order  to  form  a  more  perfect  union ; 
(2)  to  establish  justice;  (3)  to  insure  domestic  tranquillity; 
(4)  to  provide  for  the  common  defense;  (5)  to  promote  the 
general  welfare ;  and  (6)  to  secure  the  blessings  of  liberty  to 
ourselves  and  our  posterity. 

3.  The  thing  done:  Do  ordain  and  establish  this  Con- 
stitution for  the  United  States  of  America. 

238.  Source  of  the  Constitution. — This  so-called  pre- 
amble is  decisive  as  to  the  sovereign  power  that  ordained 
the  Constitution,  and  so  as  to  its  source.  In  the  two  most 
solemn  crises  of  their  history,  the  American  people,  by  their 
representatives,  have  spoken  the  same  authoritative  lan- 
guage. In  1776  they  said,  "  We  .  .  .  do  .  .  . 
solemnly  publish  and  declare  that  these  United  Colonies  are, 
and  of  right  ought  to  be,  free  and  independent  States."  In 
1787  they  said:  "We  .  .  .  do  ordain  and  establish  this 
Constitution  for  the  United  States  of  America."  The  Dec- 
laration of  Independence  and  the  Constitution  were  National 
acts  in  the  fullest  sense  of  that  term. 

It  is  no  valid  objection  to  this  view  that  Congress  and  the 
State  legislatures  were  prominent.  In  ordaining  their  Con- 
stitution, or  in  performing  other  sovereign  acts,  a  people 
will  naturally  employ  such  agents  as  are  at  hand.  It  was 
the  States  that  immediately  called  the  Continental  Congress, 
and  appointed  the  delegates  that  comprised  it;  but  the  men 
who  signed  the  Declaration  of  Independence  did  so  in  the 
name  and  by  the  authority  of  the  good  people  of  the  States. 
So  the  Congress  of  the  Confederation,  and  the  State  legis- 
latures, rendered  important  services  in  creating  and  estab- 
lishing the  Constitution ;  but  the  thirty-nine  signers  stood  in 
the  same  relation  to  the  Constitution  that  the  fifty-five 
signers  stood  to  the  Declaration.  Still  more,  the  calling  of 
the  Convention  by  the  State  legislatures,  and  the  framing  of 
the  Constitution  by  the  Convention,  were  only  preliminary 
steps  to  the  grand  and  binding  act  of  the  adoption  of  the 
Constitution  by  the  people  in  conventions.  As  Chief-Justice 
Marshall  has  said :    "  From  these  conventions  the  Constitu- 


THE  NATURE  OF  THE  CONSTITUTION.  129 

tion  derives  its  whole  authority.  The  government  proceeds 
directly  from  the  people;  is  ordained  and  estabUshed  in  the 
name  of  the  people.  ...  It  required  not  the  affirmance 
of,  and  could  not  be  negotiated  by,  the  State  governments." 
Article  V.  provides  that  amendments  to  the  Constitution 
may  be  made;  Congress  and  the  legislatures  do  the  formal 
work  in  making  them ;  but  the  amendments  are,  neverthe- 
less, made  by  the  people,  the  same  as  the  original  instrument. 

The  facts  then  are  these:  The  nation,  or  the  people,  are 
sovereign ;  but  they  have  committed  some  powers  to  one  ju- 
risdiction and  some  to  another.  Each  of  these  jurisdictions 
is  supreme  in  its  own  sphere.  Or,  as  Chief-Justice  Marshall 
states  the  case :  "  In  America  the  powers  of  sovereignty  are 
■  divided  between  the  government  of  the  Union  and  those  of 
the  States.  They  are  each  sovereign  with  respect  to  the 
objects  committed  to  it,  and  neither  sovereign  with  respect 
to  the  objects  committed  to  the  other."  ^ 

239.  Influence  of  Words  and  Theories. — The  statesmen  of  1787- 
89  made  free  use  of  such  words  and  phrases  as  "  National  system," 
"  State  plan,"  "  consolidated  government,"  and  "  confederation." 
We  must  not  suppose,  however,  that  these  men  used  these  expres- 
sions in  fixed  and  absolute  senses.  Such  terms  are  somewhat  elusive 
and  variable  even  in  scientific  treatises  on  government,  and  much 
more  so  in  practical  political  discussions.  Statesmen  are  not  always 
free  from  using  language  that  they  think,  by  its  meaning  and  associa- 
tions, will  win  them  favor  or  cast  odium  upon  their  opponents. 
Hence  we  must  not  approach  the  discussions  of  the  Constitutional 
epoch  with  heads  full  of  abstract  theories  and  dictionary  definitions. 
To  do  so,  is  to  read  into  those  discussions  the  controversies  of  a 
later  day.  We  must  go  at  once  to  the  facts — listen  to  the  debates, 
and  read  the  Constitution — if  we  would  not  be  misled.  As  a  matter 
of  course,  such  terms  as  "  National  plan  "  and  "  State  plan  "  always 
implied  more  or  less  difference  of  opinion,  and  often  a  wide  differ- 
ence of  opinion ;  but  because  William  Paterson  favored  the  State 
plan  it  does  not  follow  that  he  wished  the  Union  to  continue  weak 
and  helpless ;  and  no  more  does  it  follow  that  such  a  stanch  Na- 
tionalist as  James  Madison  desired  to  emasculate  the  States. 

Again,  the  words  "  sovereignty "  and  "  sovereign  states  "  are  of 
frequent  occurrence  in  the  period   1775-1789.    The  evidence  shows 

^  McCulloch  V.  Maryland,  4  Wheaton,  316. 
AM   GOV. — 9. 


I30 


THE  AMERICAN  GOVERNMENT. 


conclusively  that  this  language  was  loosely  used.  It  is  impossible  to 
suppose  that  the  men  who  put  such  language  in  the  Articles  of  Con- 
federation meant  to  declare  that  Rhode  Island  or  Delaware  was  a 
sovereign  in  the  sense  that  France  or  Great  Britain  was  a  sovereign. 
They  did  not  mean  thus  to  flatter  the  States,  or  to  degrade  the 
Union.  There  is  good  reason  to  think  that  when  the  wiser  states- 
men of  that  period  used  such  language  they  were  looking  rather  to 
the  old  relations  of  the  States  to  England  than  to  their  new  rela- 
tions to  the  nations  of  the  earth  and  to  the  American  Union.  No 
little  mischief  has  resulted  from  the  frequent  habit  of  reading  the 
history  of  the  Revolution,  and  construing  the  Constitution,  in  the 
light  of  abstract  definitions  and  speculative  theories. 

240.  Constitutions  a  Growth. — Useful  constitutions,  even  when 
they  are  put  in  a  written  form,  are  always  in  great  part  a  growth. 
Wholly,  or  largely,  the  elements  that  compose  them  are  the  product 
of  progressive  history.  But,  more  than  this,  constitutions  continue 
to  grow  even  after  they  are  formed.  They  cannot  be  written  in  the 
unyielding  language  of  the  fixed  sciences.  Society  changes,  and 
constitutions  must  change  with  it,  or  they  will  be  cast  aside.  Even 
amendments,  if  frequently  made,  will  jiot  maintain  a  positive  adjust- 
ment between  the  two  factors:  Society,  on  the  one  hand,  and  the 
written  fundamental  law,  on  the  other.  The  constitution  that  works 
is  never  just  the  same  as  the  constitution  that  is  printed  in  the  stat- 
ute book.  This  growth,  which  consists  in  the  adaptation  of  old 
forms  to  new  conditions,  is  affected,  amendments  apart,  through  the 
process  of  constitutional  interpretation,  whereby  its  provisions  are 
applied  to  the  facts  of  social  life.  Hence  it  was  impossible  to  tell  in 
1787  just  what  the  new  government  would  be.  No  two  of  the  men 
who  had  assisted  in  framing  the  Constitution  would  have  agreed 
throughout  in  explaining  it;  while  no  man  would  have  ventured  to 
predict,  in  any  detailed  way,  how  Congress,  the  President,  and  the 
Courts  would  construe  its  provisions.  The  general  character  of  the 
government  was  indeed  determined,  so  long  as  the  Constitution 
should  remain  in  force  and  unchanged ;  still  there  was  abundant 
room  for  the  Nation,  as  its  growth  should  take  this  or  that  direc- 
tion, speaking  through  the  organs  which  it  had  created,  to  give  its 
terms  very  different  practical  interpretations  on  many  subjects.  For 
example,  the  phrase  in  the  preamble,  "  to  promote  the  general  wel- 
fare," and  the  last  of  the  general  powers  of  Congress,  "  to  make  all 
laws  which  shall  be  necessary,"  etc.,  opened  a  wide  door  for  practical 
constitutional  development.  All  this  a  century  of  history  has  fully 
shown.' 

*  See  Bryce,  The  American  Commonwealth,  Chaps.  XXXI. -XXXV. 


CHAPTER  XIV.      ^ 

THE  SOURCES  OF  THE  CONSTITUTION. 

References. 

Campbell,  The  Puritan  in  Holland,  England,  and  America;  C.  E. 
Stevens,  Sources  of  the  Constitution  of  the  U.  S.;  Johnston,  "A 
Century  of  the  Constitution,"  in  New  Princeton  Review,  Sept., 
1887;  Sir  H.  S.  Maine,  Popular  Government,  Essay  IV.  ("The 
Constitution  of  the  U.  S.").  The  broadest  features  of  the  subject 
have  been  dealt  with  by  Dr.  Freeman,  Comparative  Politics,  particu- 
larly Lect.  II.  ("Greek,  Roman,  and  Teuton"). 

The  sources  of  the  National  Constitution  have  only  re- 
cently become  the  subject  of  historical  discussion.  They 
will  be  briefly  treated  in  the  present  chapter. 

241.  Fiat  Theory  of  the  Constitution. — Chapters 
VI.-X.  of  this  work  show  that,  as  one  has  said,  "  The 
Constitution  was  extorted  from  the  grinding  necessity  of  a 
reluctant  people."  When  it  came  to  ratification,  the  change 
of  3  votes  out  of  60  in  New  York,  of  5  out  of  168  in  Vir- 
ginia, and  10  out  of  355  in  Massachusetts,  on  the  decisive 
ballots,  would  have  sufficed  to  defeat  that  end.  For  rea- 
sons that  are  here  immaterial,  the  spirit  of  opposition  fully 
died  out  in  three  or  four  years,  and  a  feeling  of  admiration 
quite  as  strong  took  its  place.  "  The  worship  of  the  Con- 
stitution," and  "  the  Constitution  a  national  fetish,"  are 
among  the  strong  phrases  that  Dr.  Von  Hoist  uses  to  ex- 
press the  feeling  that  the  instrument  has  commonly  inspired 
in  the  hearts  of  Americans.  Often  its  formation  has  been 
described  as  a  creative  act,  inspired  by  more  than  human 
vision.  This  view  is  something  very  like  the  one  that  Mr. 
Gladstone  is  understood  to  have  expressed  in  his  famous 
characterization.    "  As  the  British  Constitution  is  the  most 

(13O 


132  THE  AMERICAN  GOVERNMENT. 

subtle  organism  which  has  proceeded  from  progressive 
history,"  he  says,  "  so  the  American  Constitution  is  the  most 
wonderful  work  ever  struck  off  at  a  given  time  by  the  brain 
and  purpose  of  man." 

242.  The  Organic  Theory. — The  making  of  the  Ameri- 
can Government,  as  its  history  has  been  traced  in  Part  I.  of 
this  work,  suggests  a  very  different  theory.  This  history 
points,  not  only  to  a  long  course  of  political  evolution  that 
took  place  partly  in  Germany,  partly  in  England,  and  partly 
in  America,  and  that  elaborated  the  materials  or  elements 
out  of  which  the  Constitution  was  formed,  but  it  also  re- 
veals the  real  nature  of  the  work  that  was  done  in  Phila- 
delphia in  1787.  The  Federal  Convention  did  not  invent 
new  political  ideas,  or  create  new  governmental  institutions ; 
what  it  did  was  to  select,  combine,  and  adjust  old  ideas  and 
institutions  in  a  manner  that,  in  the  opinion  of  a  majority 
of  its  members,  would  constitute  a  working  government  for 
the  American  people.  In  respect  to  elements,  therefore,  the 
American  Constitution  as  much  proceeded  from  progressive 
history  as  the  British  Constitution ;  and  it  is  only  in  respect 
to  this  work  of  selection,  combination,  and  adaptation  that  it 
can  be  said  that  it  was  struck  off  at  a  given  time  by  the 
brain  and  purpose  of  man.  And  this,  it  is  not  improbable, 
is  what  Mr.  Gladstone  really  intended  to  say.  Still,  in  this 
second  particular,  there  is  a  marked  difference  between  the 
two  constitutions ;  the  parts  of  the  one  slowly  grew  together 
like  a  living  organism,  while  the  parts  of  the  other,  in  a 
measure,  were  put  -together  at  a  given  time  like  the  parts  of 
a  building.  No  transaction  like  that  at  Philadelphia  finds  a 
place  in  British  constitutional  history. 

243.  Relations  of  the  Two  Constitutions. — In  a  large 
sense,  the  new  Constitution  that  was  made  was  a  copy  of 
the  old  one  that  had  grown.  The  colonists  had  not  revolted 
against  the  British  constitution,  but  only  against  the  way  in 
which,  as  affected  themselves,  the  king  and  Parliament  made 
that  constitution  work.  On  the  other  hand,  they  were  as 
deeply  attached  to  that  constitution  as  it  is  possible  for  men 


THE  SOURCES  OF  THE  CONSTITUTION.  133 

to  be  attached  to  the  institutions  of  their  fathers.  Not  only 
is  our  Constitution  "  colored  throughout  by  political  ideas  of 
British  origin,"  as  Sir  H.  S.  Maine  says,  but  it  is  in  reality, 
as  he  also  says,  "  a  version  of  the  British  constitution  "  as  it 
existed  in  the  latter  half  of  the  eighteenth  century.^  For- 
tunately, this  fact  can  be  made  to  appear  at  the  same  time 
that  some  cardinal  features  of  the  American  Government  are 
explained. 

244.  Powers  of  Government. — Generally  speaking,  the 
powers  of  government  are  three  in  number:  they  are  the 
power  that  enacts  or  makes,  the  power  that  enforces  or 
executes,  and  the  power  that  construes  or  interprets  thf 
law.  Manifestly,  good  government  is  impossible  when  any 
one  of  these  powers  is  wanting.  The  law  must  be  de- 
clared, must  be  enforced,  and  must  be  adapted  to  the  chang- 
ing facts  and  circumstances  that  originate  in  human  society. 
These  powers  are  called  the  Legislative,  the  Executive,  and 
the  Judicial  powers.  While  they  are  alike  necessary,  and  in 
a  sense  coequal,  experience  shows,  what  philosophy  also 
suggests,  that  the  law-making  power  is  the  greatest  of  the 
three,  and  that  in  free  countries  it  tends  to  encroach  upon 
the  other  two. 

245.  Departments  of  Government. — Sometimes  the 
three  powers  of  government  are  all  concentrated  directly 
in  the  hands  of  one  man  or  of  one  set  of  men.  The  result 
of  such  a  state  of  things  Mr.  Madison  has  thus  described: 
"  The  accumulation  of  all  powers,  legislative,  executive, 
and  judiciary,  in  the  same  hands,  whether  of  one,  a  few,  or 
many,  whether  hereditary,  self-appointed,  or  elected,  may 
justly  be  pronounced  the  very  definition  of  tyranny."  - 
Hence  as  societies  have  advanced,  causing  improvements  in 
government,  there  has  also  been  a  pronounced  tendency 
to  separate  the  three  powers,  intrusting  them  more  or  less 
completely  to  different  men  or  agents.  In  no  country  had 
the  distinction  of  the  three  powers  been  more  clearly  seen, 

*  Popular  Government,  pp.  207,  208. 

*  The  Federalist,  No.  47. 


134  THE  AMERICAN  GOVERNMENT. 

and  in  no  government  had  they  been  more  fully  separated, 
than  in  the  England  and  the  English  government  of  1775- 
1789.  Three  departments  of  government,  more  or  less 
separate  and  distinct,  bearing  the  names  of  Parliament, 
Crown,  and  Courts  of  Law,  antedated  the  settlements  of 
Jamestown  and  Plymouth.  The  members  of  the  Federal 
Convention  were  fully  instructed  in  these  important  facts. 
Without  looking  farther  for  reasons,  we  see  that  it  was  per- 
fectly natural  that  they  should  adopt  the  following  as  the 
first  of  their  resolutions :  "  That  a  National  government 
ought  to  be  established  consisting  of  a  supreme  Legislative, 
Executive,  and  Judiciary."  Accordingly,  such  departments 
were  duly  constituted.  In  the  eye  of  political  science,  the 
Congress,  Presidency,  and  Judiciary  of  our  Constitution 
answer  to  the  Parliament,  the  Crown,  and  the  Law  Courts 
of  England.  These,  however,  are  only  the  larger  features 
that  were  borrowed. 

246.  Relations  of  the  Three  Departments. — These  de- 
partments are  commonly  described  as  separate,  independ- 
ent, and  coordinate.  This  is  true  in  the  sense  that  they 
are  all  created  by  the  Constitution,  and  that  no  one  of 
them,  without  an  act  of  usurpation,  can  be  destroyed  by 
either  or  both  of  the  others.  But  practically  the  three 
powers  are  not  separate  and  independent.  The  Executive 
has  a  part  in  making  laws ;  Congress  declares  war,  which 
is  ah  executive  act ;  the  Senate  acts  with  the  President  in 
making  treaties  and  appointing  officers,  and  is  also  a  court 
for  trying  impeachment  cases;  while  many  provisions  of 
law  are  enforced  by  the  Courts.  Moreover,  Congress  con- 
stantly has  to  do  with  administration,  particularly  through 
the  committees  of  the  two  houses. 

247.  Influence  of  the  State  Constitutions. — There  was 
still  another  reason  why  the  Convention  created  the  three 
departments  and  organized  the  powers  of  government  as 
it  did.  In  Chapter  II.  it  is  shown  that  the  colonies,  sov- 
ereignty aside,  were  miniature  Englands ;  or,  in  other  words, 
that  their  institutions   were  produced  through   the  trans- 


THE  SOURCES  OF  THE  CONSTITUTION.  135 

plantation  and  development  of  English  institutions,  and 
not  by  formal  creation.  It  was  also  shown  in  Chapter 
IV.  that  the  State  governments,  reorganized  save  in  two 
cases,  were  the  old  colonial  governments  somewhat  changed 
and  adapted  to  the  new  order  of  things.  These  govern- 
ments, which  had  been  fully  tested  in  their  essential  fea- 
tures, were  also  before  the  statesmen  of  1787,  and  materially 
influenced  their  discussions  and  conclusions.  In  the  most 
direct  and  immediate  sense,  the  State  constitutions  were  in 
fact  the  models  that  were  followed  by  the  Convention  at 
Philadelphia. 

Prof.  Alexander  Johnston  has  worked  out  the  resemblances  with 
much  care.  In  all  the  States  the  three  powers  were  intrusted  to 
three  coordinate  branches ;  with  two  exceptions,  they  had  bicameral 
legislatures ;  in  7,  the  upper  house  was  called  the  Senate,  in  4,  the 
lower  house,  the  House  of  Representatives ;  in  most  of  the  States 
the  two  houses  had  different  bases,  Connecticut,  for  example,  mak- 
ing the  towns  equal  in  one  house  while  choosing  the  other  from  the 
whole  people — which  suggested  the  bases  of  the  National  House  of 
Representatives  and  Senate.  The  President  stood  in  the  room  of 
the  familiar  governor,  who  was  called  president  in  at  least  4  of  the 
States.  As  a  rule  the  governors  were  commanders  in  chief  of  the 
State  forces,  had  the  pardoning  power,  and,  before  the  war,  exercised 
the  power  of  veto.  The  Vice  President  was  the  lieutenant  governor 
reproduced.  The  independent  judiciary,  and  the  whole  judicial  sys- 
tem in  its  large  features,  was  immediately  suggested  by  the  States. 
These  are  a  few  of  the  many  interesting  analogies  that  this  writer 
has  traced  out.* 

Note. — The  careful  reader  of  Madison's  reports  of  the  debates  in  the  Con- 
vention, and  of  The  Federalist,  sees  how  the  speakers  and  writers  are  con- 
stantly resorting  to  State  experience  for  analogies  and  arguments.  Sir  H.  S. 
Maine  observes  that  Hamilton,  Jay,  and  Madison,  in  writing  The  Federalist, 
searched  carefully  for  historical  arguments  with  which  to  enforce  the  Constitu- 
tion. {Popular  Government,  Essay  IV.)  They  resorted  to  the  ancient  repub- 
lics, to  the  Netherlands,  to  the  Holy  Roman  Empire  —  sometimes  for  confirma- 
tion, and  sometimes  for  the  opposite ;  "  but  far  the  most  important  experience 
to  which  they  appealed  was  that  of  their  own  country  in  a  very  recent  date." 
"  Nevertheless,  there  is  one  fund  of  political  experience,"  says  Maine,  "  upon 
which  The  Federalist  seldom  drew,  and  that  is  the  political  experience  of  Great 
Britain.     The  scantiness  of  the  references  [he  finds  but  three]  is  at  first  sight 


* "  The   First   Century   of   the   Constitution "    in   New   Princeton   Revitw, 
Sept,   1887. 


136 


THE  AMERICAN  GOVERNMENT. 


inexplicable."  After  a  page  or  more  of  discussion,  the  distinguished  writer 
finds  one  of  the  two  reasons  for  the  omission.  "  The  appeal  to  British  ex- 
perience would  only  have  provoked  prejudice  and  repulsion."  The  other  reason 
is  that  the  hardest  problems  that  were  solved  at  Philadelphia  were  of  a  kind 
that  did  not  admit  of  much  direct  assistance  from  the  British  quarter.  For 
example,  the  question,  How  shall  the  two  houses  be  constituted?  was  more  trying 
than  the  question  whether  there  should  be  two,  and  what  they  should  be  called. 
On  these  secondary- points,  the  appeal  to  state  history  was  far  more  helpful  than 
an  appeal  to  any  foreign  source  could  possibly  be. 


CHAPTER  XV. 

THE  CONSTITUTION  IN  OUTLINE. 

Before  the  student  enters  upon  an  examination  of  the 
Constitution,  clause  by  clause,  he  should  form  a  compre- 
hensive view  of  it  as  a  whole.  In  such  a  case  the  proper 
course  of  procedure  is  analysis, —  from  the  whole  to  the 
parts.  If  this  be  not  done,  the  study  is  more  than  likely  to 
be  fragmentary  and  incomplete.  Again  at  the  end,  when 
the  examination  of  the  parts  is  completed,  the  whole  Con- 
stitution should  be  reviewed,  and  again  be  treated  as  a 
whole.  To  promote  these  ends,  the  following  outline  is 
presented. 

248.  Parts  of  the  Constitution. — These  are  the  pream- 
ble, the  seven  articles,  and  the  fifteen  amendments.  Most 
of  the  articles,  including  the  last  three  amendments,  are 
subdivided  into  sections,  and  a  majority  of  the  sections 
are  again  subdivided  into  clauses.  In  the  original,  the 
clauses  are  not  numbered,  but  editors  have  added  the  num- 
bers for  convenience  of  citation.  The  formal  divisions, 
larger  and  smaller,  are  based  on  the  corresponding  divi- 
sions of  the  subject  matter.  Thus,  Article  I.  relates  to  the 
legislature;  section  8  of  this  article,  to  the  general  powers 
of  Congress ;  clause  two  of  the  section,  to  the  power  to  bor- 
row money.     The  preamble  need  not  be  further  considered. 

249.  Article  I.,  10  Sections. — Article  I.  relates  to  the 
legislative  department  of  the  government  and  connected 
subjects. 

Section  i  vests  the  legislative  power  in  a  Senate  and 
House  of  Representatives. 

Section  2,  five  clauses,  declares  the  composition  of  the 
House  of  Representatives,  the  length  of  the  term,  the  qual- 

(137) 


138  THE  AMERICAN  GOVERNMENT. 

ifications  of  electors  and  of  Representatives,  regulates  the 
apportionment  of  members  and  of  direct  taxes,  and  provides 
for  filling  vacancies  and  for  the  election  oi  the  necessary 
officers.  The  House  is  given  the  sole  power  of  impeach- 
ment 

Section  3,  seven  clauses,  regulates  the  composition  of  the 
Senate,  fixes  the  term  of  Senators,  the  classes  into  which 
they  shall  be  divided,  and  their  qualifications,  declares  the 
Vice  President  the  president  of  the  body  and  empowers  it 
to  choose  other  officers,  including  a  president  pro  tempore. 
The  Senate  is  made  the  court  for  trying  impeachment  cases, 
and  the  judgments  that  it  may  render  in  such  cases  are  de- 
fined. 

Section  4,  two  clauses,  deals  with  the  times,  places,  and 
manner  of  holding  elections  of  Senators  and  Representa- 
tives, and  provides  for  an  annual  session  of  Congress. 

Section  5,  four  clauses,  deals  with  the  independent  pow- 
ers of  the  two  houses  of  Congress ;  it  makes  them  judges 
of  the  elections  of  their  members,  and  regulates  quorums, 
adjournments,  rules,  and  records  of  proceeding. 

Section  6,  two  clauses,  provides  that  members  of  Con- 
gress  shall  receive  a  compensation  from  the  national  treas- 
ury, clothes  them  with  special  privileges,  and  declares  their 
incapacity  to  hold  certain  offices. 

Section  7,  three  clauses,  commits  to  the  House  of  Repre- 
sentatives the  origination  of  revenue  bills,  and  declares  the 
procedure  by  which  laws  shall  be  enacted,  including  the 
definition  of  the  President's  veto. 

Section  8,  eighteen  clauses,  is  a  statement  of  the  general 
powers  of  Congress. 

Section  9,  eight  clauses.  Imposes  limitations  upon  Con- 
gressional power :  the  slave  trade,  habeas  corpus,  bills  of  at- 
tainder and  ex  post  facto  laws,  capitation  taxes,  export 
duties,  the  mode  of  drawing  money  from  the  treasury,  and 
titles  of  nobility  are  all  regulated. 

Section  10,  three  clauses,  imposes  certain  limitations  upon 
the  States.     Here  we  have  the  formal  denial  to  them  of 


THE  CONSTITUTION  IN  OUTLINE.  139 

some  of  the  most  imposing  powers  of  sovereignty,  as  the 
power  to  enter  into  treaties  with  foreign  states  and  with  one 
another,  to  coin  money,  to  keep  troops  in  time  of  peace,  and 
several  others. 

250.  Article  II.,  4  Sections. —  Article  II.  has  for  its  sub- 
ject matter  the  executive  department  of  the  government. 

Section  i,  seven  clauses,  vests  the  power  in  a  President 
of  the  United  States  of  America,  defines  his  term  of  office, 
as  also  that  of  the  Vice  President,  regulates  the  election  of 
the  two  officers,  and  declares  their  qualifications.  It  also 
declares  in  what  cases  the  Vice  President  shall  succeed  to 
the  presidency,  provides  for  the  President  a  salary,  which 
shall  not  be  increased  nor  diminished  during  his  term  of 
office,  and  prescribes  his  inauguration  oath. 

Section  2,  three  clauses,  defines  the  President's  duties. 
He  shall  be  commander  in  chief  of  the  army  and  navy  of 
the  United  States,  may  require  the  written  opinion  of  the 
heads  of  the  executive  departments  of  the  government, 
and  shall  possess  the  power  of  granting  pardons  and  re- 
prieves save  in  cases  of  impeachment.  He  shall,  in  con- 
junction with  the  Senate,  make  treaties,  shall  nominate  and 
appoint  certain  classes  of  officers,  and  shall  fill  all  vacancies 
in  such  offices  that  occur  in  the  recess  of  the  Senate. 

Section  3  deals  with  the  same  subject.  The  President 
shall,  from  time  to  time,  give  Congress  information  of  the 
State  of  the  Union,  and  shall  recommend  to  their  attention 
such  measures  as  he  thinks  necessary  and  expedient;  he 
may  convene  them  on  extraordinary  occasions,  and  adjourn 
them  when  they  cannot  agree  on  the  time  of  adjournment; 
he  shall  receive  ambassadors  and  other  public  ministers, 
shall  take  care  that  the  laws  be  faithfully  executed,  and 
shall  commission  all  officers  of  the  United  States. 

Section  4  declares  that  the  President  and  Vice  President 
shall  be  removed  from  office  if  convicted  on  impeachment. 

251.  Article  III.,  3  Sections. — Article  III.  deals  with  the 
judicial  department. 

Section  i  vests  such  power  in  one  Supreme  Court,  and 


I40  THE  AMERICAN  GOVERNMENT. 

such  inferior  courts  as  Congress  shall  from  time  to  time 
create.  It  makes  the  tenure  of  the  judges  during  good 
behavior,  and  forbids  Congress  to  diminish  their  compensa- 
tion after  they  enter  upon  their  office. 

Section  2,  three  clauses,  declares  the  classes  of  cases 
to  which  the  judicial  power  shall  extend,  defines  the  juris- 
diction, original  and  appellate,  of  the  Supreme  Court,  and 
regulates  the  trial  of  all  crimes,  securing  the  right  of  trial 
by  jury,  and  defining  places  of  trial. 

Section  3,  two  clauses,  defines  the  crime  of  treason  and 
the  mode  of  its  proof,  and  intrusts  to  Congress  its  punish- 
ment, subject  to  a  single  regulation  in  respect  to  corrup- 
tion of  blood  and  forfeiture  of  estate. 

252.  Article  IV.,  4  Sections. — Article  IV.  relates  to 
various  subjects. 

Section  i  guarantees  the  faith  and  credit  of  the  public 
acts  of  any  State  in  all  the  other  States. 

Section  2,  three  clauses,  guarantees  the  rights  and  priv- 
ileges of  citizens  of  one  State  in  the  other  States,  and  de- 
clares that  fugitives  from  justice,  and  fugitives  from  service 
or  labor  (slaves  and  apprentices),  fleeing  from  one  State  into 
another,  shall  be  given  up. 

•  Section  3,  two  clauses,  provides  for  the  admission  of 
new  States  into  the  Union,  and  for  the  management  of  the 
national  territory  and  other  property. 

Section  4  says  the  United  States  shall  guarantee  to  every 
State  in  the  Union  a  republican  form  of  government,  and 
shall  protect  each  of  them  against  invasion  and,  on  appli- 
cation, against  domestic  violence. 

253.  Article  V. — The  fifth  article  deals  exclusively  with 
amendments  to  the  Constitution,  defining  the  manner  in 
which  they  shall  be  proposed  and  in  which  they  shall  be 
ratified. 

254.  Article  VI. — The  sixth  article  (i)  declares  the 
inviolability  of  the  debts  and  engagements  of  the  United 
States  entered  into  before  the  Constitution  was  adopted ; 
(2)  declares  the  supremacy  of  the  Constitution,  laws,  and 


THE  CONSTITUTION  IN  OUTLINE.  141 

treaties  of  the  United  States  over  all  citizens  and  States; 
and  (3)  requires  that  Senators  and  Representatives,  mem- 
bers of  State  legislatures,  and  all  executive  and  judicial  offi- 
cers of  the  United  States,  and  of  the  States,  shall  be  bound 
by  oath  or  affirmation  to  support  the  Constitution;  but  no 
religious  test  shall  be  made  a  qualification  for  any  national 
office  or  trust. 

255.  Article  VII. — The  subject  of  Article  VII.  is  the 
ratification  of  the  Constitution. 

256.  Amendments  I.-X. — The  first  ten  amendments 
were  proposed  by  Congress  September  25,  1789,  and,  having 
received  the  requisite  ratifications,  were  proclaimed  to  be 
in  force,  December  15,  1791.  Together  they  constitute  a  bill 
of  rights.  They  are  intended  to  protect  the  citizen  against 
undue  interference  by  the  national  authority.  Thus,  they 
guarantee  freedom  of  worship,  of  speech,  of  the  press,  the 
right  of  petition,  the  right  to  bear  arms,  immunity  of  the 
citizen  against  the  army,  the  right  to  be  secure  in  person, 
home,  papers,  and  effects  against  unreasonable  searches  by 
public  officers,  and  other  personal  and  civil  rights.  Crim- 
inal trials  are  regulated,  jury  trial  in  civil  cases  guaranteed, 
excessive  bail  forbidden,  and  the  doctrine  of  delegated  au- 
thority, as  respects  the  Constitution,  affirmed. 

257.  Amendment  XI. — The  eleventh  amendment,  pro- 
posed March  5,  1794,  and  declared  in  force  January  8,  1798, 
worked  a  considerable  limitation  of  the  jurisdiction  of  the 
national  courts.  Compare  the  amendment  with  Article  III., 
Sec.  2. 

258.  Amendment  XII.  — The  twelfth  amendment  was 
proposed  December  12,  1803,  and  declared  in  force  Septem- 
ber 25,  1804.  It  materially  changes  the  mode  of  electing 
the  President  and  Vice  President  after  the  electoral  col- 
leges have  been  appointed  by  the  States. 

259.  Amendment  XIII.,  2  Sections. — ^The  thirteenth 
amendment  abolished  slavery  in  the  United  States.  It  was 
proposed  January  31,  1865,  and  declared  in  force  Decem- 
ber 18  of  the  same  year. 


142  THE  AMERICAN  GOVERNMENT. 

a6o.  Amendment  XIV.,  5  Sections. — The  fourteenth 
amendment,  which  was  proposed  June  16,  1866,  and  which 
took  effect  July  28,  1868,  relates  to  the  reconstruction  of  the 
Union  following  the  Civil  War.  It  defines  citizenship, 
guarantees  the  privileges  and  immunities  of  citizens  against 
State  interference,  provides  a  mode  of  apportioning  Repre- 
sentatives in  certain  cases  (which  never  took  effect),  de- 
clares certain  persons  who  have  participated  in  rebellion 
against  the  United  States  ineligible  to  Congress,  to  the 
electoral  colleges,  and  to  any  office,  State  or  National,  until 
their  disabilities  shall  have  been  removed  by  Congress, 
affirms  the  validity  of  the  public  debt,  prohibits  the  United 
States  or  any  State  to  pay  debts  contracted  in  aid  of  insur- 
rection or  rebellion  against  the  Union,  and  to  pay  for  any 
slaves  lost  or  emancipated. 

261.  Amendment  XV.,  2  Sections. — The  fifteenth 
amendment  had  the  practical  effect  to  confer  the  right  of 
suffrage  upon  all  citizens  of  the  United  States,  so  far  as  pre- 
viously existing  limitations  growing  out  of  race,  color,  or 
previous  condition  of  servitude  were  concerned. 

262.  Objects  of  Review. — A  careful  reading  of  the 
Constitution,  accompanied  by  such  a  grouping  of  provisions 
as  the  foregoing,  in  addition  to  preparing  the  student  for 
close  study  of  the .  instrument  itself,  will  subserve  two  or 
three  other  purposes.  It  will  show  how  admirably  the  va- 
rious provisions  that  the  Federal  Convention  had  elaborated 
and  agreed  to,  were  worded  and  grouped  by  the  Committee 
of  Revision.  Furthermore,  it  will  admirably  illustrate  the 
nature  of  a  constitution  as  opposed  to  an  ordinary  law.  It 
will  give  force  to  the  words  of  Chief-Justice  Marshall: 

"  A  constitution,  to  contain  an  accurate  detail  of  all  the 
subdivisions  of  which  its  great  powers  will  admit,  and  of  all. 
the  means  by  which  they  may  be  carried  into  execution, 
would  partake  of  the  prolixity  of  a  legal  code,  and  could 
scarcely  be  embraced  by  the  human  mind.  It  would  prob- 
ably never  be  understood  by  the  public.  Its  nature,  there- 
fore, requires  that  only  its  great  outlines  should  be  marked, 


THE  CONSTITUTION  IN  OUTLINE.  143 

its  important  objects  designated,  and  the  minor  ingredients 
which  compose  those  objects  be  deduced  from  the  nature  of 
the  objects  themselves."  ^ 

Note. — "  History  knows  few  instruments  which  in  so  few  words  lay  down 
equally  momentous  rules  on  a  vast  range  of  matters  of  the  highest  importance 
and  complexity.  The  Convention  of  1787  were  well  advised  in  making  their 
draft  short,  because  it  was  essential  that  the  people  should  comprehend  it,  be- 
cause fresh  differences  of  view  would  have  emerged  the  further  they  had  gone 
into  details,  and  because  the  more  one  specifies  the  more  one  has  to  specify  and 
to  attempt  the  impossible  task  of  providing  beforehand  for  all  contingencies. 
These  sages  were  therefore  content  to  lay  down  a  few  general  rules  and  prin- 
ciples, leaving  some  details  to  be  filled  in  by  congressional  legislation,  and  fore- 
seeing that  for  others  it  would  be  necessary  to  trust  to  interpretation." — Bryce, 
Vol.  I.,  p.  372  (1894). 

^  McCulloch  V.  The  State  of  Maryland,  4  Wheaton  366 


CHAPTER  XVI. 

VESTING  THE  LEGISLATIVE  POWER. 

Article  I. 

Section  i. — All  legislative  powers  herein  granted  shall  be  vested 
in  a  Congress  of  the  United  States,  which  shall  consist  of  a  Senate 
and  House  of  Representatives. 

263.  Congress  Bicameral. — As  a  rule,  the  legislatures 
of  English-speaking  countries  have  consisted  of  two  houses. 
The  House  of  Commons,  as  a  distinct  house  of  Parliament, 
dates  from  1265.  With  few  exceptions,  the  State  legis- 
latures in  1787  consisted  of  two  houses.  In  some  countries, 
and  notably  in  France,  one  house,  or  the  unicameral  sys- 
tem, was  formerly  preferred.  The  great  argument  for  two 
houses  is,  that  one  will  check  and  balance  the  other.  This 
plan  tends  to  secure  a  more  thorough  consideration  of  sub- 
jects coming  before  the  legislature,  and  so  to  prevent  hasty 
and  ill-considered  legislation.^ 

264.  Names  of  the  Legislature  and  the  Houses. — 
Naturally,  the  Federal  Convention  gave  to  the  new  legis- 
lature the  name  that  the  old  one  had  borne,  and  to  the  two 
houses  names  by  which  corresponding  State  bodies  were 
known.     Congress,   Senate,  and  House  of  Representatives 


*  This  is  well  illustrated  by  an  anecdote.  Soon  after  his  return  from 
France,  in  1789,  Mr.  Jeflferson,  who  was  much  influenced  by  French  ideas,  dined 
with  Washington.  He  severely  attacked  the  two-house  plan  as  obstructive  and 
mischievous.  Washington  replied  that  he  adhered  to  the  experience  of  England 
and  America.  "  You  yourself,"  he  said,  "  have  proved  the  excellence  of  two 
houses  this  very  moment."  "I,"  said  Jefferson,  "how  is  that,  general?" 
"  You  have,"  replied  Washington,  "  turned  your  hot  tea  from  the  cup  into  the 
saucer,  to  get  it  cool.  It  is  the  same  thing  we  desire  of  the  two  houses." 
— Life  and  Letters  of  Francis  Lieber,  p.  417.  And  yet  there  was  strong  ob- 
jection made  to  introducing  this  system  into  the  United  States  government,  as 
has  been  shown  in  Part  I. 

(144) 


VESTING  THE  LEGISLATIVE  POWER.  145 

were  familiar  names.  It  is  both  common  and  convenient  to 
call  the  houses  the  upper  and  lower  houses,  though  this  lan- 
guage is  not  found  in  the  Constitution  or  laws. 

265.  True  Theory  of  Representation. — The  true  theory 
of  representation  cannot  be  better  stated  than  in  Judge 
Cooley's  words: 

"  Representatives  are  chosen  in  States  and  districts ;  but 
when  chosen  they  are  legislators  for  the  whole  country,  and 
are  bound  in  all  they  do  to  regard  the  interest  of  the  whole. 
Their  own  immediate  constituents  have  no  more  right  than 
the  rest  of  the  Nation  to  address  them  through  the  press, 
to  appeal  to  them  by  petition,  or  to  have  their  local  interests 
considered  by  them  in  legislation.  They  bring  with  them 
their  knowledge  of  local  wants,  sentiments,  and  opinions, 
and  may  enlighten  Congress  respecting  these,  and  thereby 
aid  all  the  members  to  act  wisely  in  matters  which  affect 
the  whole  country;  but  the  moral  obligation  to  consider 
the  interest  of  one  part  of  the  country  as  much  as  that  of 
another,  and  to  legislate  with  a  view  to  the  best  interests  of 
all,  is  obligatory  upon  every  member,  and  no  one  can  be 
relieved  from  this  obligation  by  instructions  from  any 
source.  Moreover,  the  special  fitness  to  legislate  for  all, 
which  is  acquired  by  the  association,  mutual  information, 
and  comparison  of  views  of  a  legislative  body,  cannot  be 
had  by  the  constituency,  and  the  advantages  would  be  lost 
to  legislation  if  the  right  of  instruction  were  recognized."  ^ 

266.  The  Right  of  Instruction. — The  traditional  theory  of  the 
House  of  CommoTis  is  that  every  member,  ahhough  elected  by  a 
particular  constituency,  serves  for  the  whole  realm  and  not  merely 
for  the  people  that  elected  him.  Blackstone  says :  "  Therefore  he  is 
not  bound  like  a  deputy  of  the  United  Provinces  to  consult  with,  or 
take  the  advice  of,  his  constituents  upon  any  particular  point,  unless 
he  himself  thinks  it  proper  or  right  to  do  so."  Although  a  deter- 
mined effort  was  made  to  establish  the  opposite  one  in  the  United 
States,  the  same  theory  has  been  established  here  as  respects  both 
the  Senate  and  the  House  of  Representatives. 


•  The  Principles  of  Constitutional  Lazv,  pp.  41,  42. 
AM.    GOV. — 10. 


146  THE  AMERICAN  GOVERNMENT. 

In  1789  an  unsuccessful  attempt  was  made  in  the  House  of  Repre- 
sentatives to  insert  in  one  of  the  proposed  amendments  to  the  Con- 
stitution a  clause  reserving  to  the  people  the  right  of  instruction. 
Some  advocates  have  affirmed  the  duty  of  a  representative  to  obey 
such  instructions  when  properly  given,  or  to  resign  his  office.    Little 
is  now  heard  of  this  right ;  but  formerly  it  was  common  for  State 
legislatures,  and  even  for  popular  conventions,  to  instruct  Senators 
and    Representatives.    Hugh    L.    White,    Senator    from   Tennessee, 
maintained  the  doctrine   of  instruction   in   its   extreme   form ;  and 
when,  in  1839,  he  could  not  conscientiously  obey  certain  instructions 
that  he  had  received  from  the  legislature  of  his  State,  he  resigned. 
In  recent  years  legislatures  have  sometimes  requested  that  a  par- 
ticular course  be  pursued  by  Senators  and   Representatives.    The 
I  doctrine  was  defended  on  the  ground  that  it  is  democratic.    It  is 
( plainly  impracticable,  since  there  are  no  certain  means  of  ascertain- 
/  ing  what  the  people  want  without  resorting  to  an  election.     Some  of 
/  the  States  have  incorporated  the  right  of  instruction  into  their  con- 
stitutions, but  no  State  has  gone  so  far  as  to  require  the  Representa- 
1  tive  to  obey.* 


'  Switzerland  has  carried  the  democratic  principle,  or  the  direct  participa- 
tion of  the  people  in  government,  farther  than  any  other  country.  Not  only 
do  the  voters,  under  certain  condition,  pass  upon  bills  that  the  federal  and 
cantonal  legislatures  have  first  approved,  but  they  even  initiate  measures.  See 
discussions  of  the  Referendum  and  the  Initiative  in  the  following:  Vincent, 
State  and  Federal  Government  in  Szvitserland ;  Adams  and  Cunningham, 
The  Swiss  Confederation.  See  also  The  Atlantic  Monthly.  April,  1894,  "  The 
Referendum  in  Switzerland  and  in  America,"  and  Lalor's  Cyclopadia,  article 
"  Instructions." 


CHAPTER  XVII. 

COMPOSITION    AND   ORGANIZATION    OF   THE    HOUSE 
OF  REPRESENTATIVES. 

Article  I. 

Section  2,  Clause  J. — The  House  of  Representatives  shall  be  com- 
posed of  members  chosen  every  second  year  by  the  people  of  the  sev- 
eral States,  and  the  electors  in  each  State  shall  have  the  qualifica- 
tions requisite  for  electors  of  the  most  numerous  branch  of  the  State 
legislature. 

267.  Representative's  Term. — Some  members  of  the 
Convention  wished  to  limit  the  Representative's  term  to  one 
year,  and  some  wished  to  extend  it  to  three  years.  The 
first  argued  that  a  short  term  would  keep  the  Representa- 
tive mindful  of  his  dependence  upon  tVie  people;  the  sec- 
ond, that  a  long  term  would  tend  to  give  the  government 
permanence  and  stability.  Two  years  was  finally  agreed 
upon  as  reasonably  combining  both  ends.^ 

268.  Representatives  Elected  by  the  People. — Except 
in  Connecticut  and  Rhode  Island,  where  they  were  elected 
by  the  people,  the  delegates  to  the  Old  Congress  were  ap- 
pointed by  the  State  legislatures.  But  it  was  an  essential 
part  of  the  new  plan  that  the  House  of  Representatives 
should  be  chosen  by  the  people  of  the  States.  Hence  it  is 
called  the  popular  branch  of  Congress.  The  legally  qualified 
electors  of  State  representatives  are  declared  legally  quali- 
fied electors  of  National  Representatives.  But  as  no  State 
has  more  than  one  rule  of  suffrage,  the  man  who  may  vote 


*  This  clause  also  determines  the  length  of  a  Congress.  It  is  the  same  as 
the  Representative's  term.  The  first  Congress  legally  began  March  4,  1789; 
the  Fifty-seventh  Congress,  March  4,    1901. 

(T47) 


148  THE  AMERICAN  GOVERNMENT. 

for  State  representatives  may  also  vote  for  governor,  etc. 
As  each  State  makes  its  own  rules,  subject  to  a  single  limi- 
tation, a  man  may  vote  for  a  Representative  in  one  State 
who  cannot  on  moving  to  another.  The  single  limitation 
referred  to  is  found  in  section  i,  Article  XV.,  of  Amend- 
ments :  "  The  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United  States, 
or  by  any  State,  on  account  of  race,  color,  or  previous  con- 
dition of  servitude."  By  giving  the  electors  of  National 
Representatives  the  same  qualifications  as  electors  of  State 
representatives,  the  Constitution  provides  indirectly  that 
State  representatives  shall  be  elected  by  the  people. 

Section  z,  Clause  2. — No  person  shall  be  a  Representative  who 
shall  not  have  attained  to  the  age  of  twenty-five  years,  and  been 
seven  years  a  citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  in  which  he  shall  be  chosen. 

269.  Original  Qualifications  of  Representatives. — Be- 
yond providing  that  no  man  should  sit  more  than  three 
years  in  six,  the  Articles  of  Confederation  did  not  fix  the 
qualifications  of  members  of  Congress.  All  other  qualifi- 
cations were  left  to  the  State.  But  the  Constitution  fixes 
the  three  qualifications  of  age,  citizenship,  and  inhabitancy. 
The  ages  fixed  in  this  clause  and  in  clause  3  of  section  3, 
and  the  periods  of  citizenship  in  the  case  of  foreign-bom 
citizens,  are  none  too  great  to  qualify  men  to  sit  in  the  two 
houses  of  Congress.  Obviously,  too,  a  legislature  should 
consist  wholly  of  citizens  of  the  nation  or  state.  In  a  great 
country  like  the  United  States,  it  is  important  that  members 
of  Congress  shall  be  inhabitants  of  the  States  that  elect 
them.  As  a  rule,  residents  of  New  England  could  not 
intelligently  represent  the  people  of  California.  It  is  not 
necessary  for  a  Representative  to  live  in  the  district  that 
he  represents,  but  such  is  the  almost  unvarying  custonL^ 

*  In  Great  Britain  it  is  common  for  members  of  the  House  of  Commons  not 
to  live  within  the  constituencies  that  elect  them.  A  resident  of  London  or 
Edinburgh,  for  instance,  may  represent  any  constituency  in  England,  Scotland, 
or  Wales.  Mr.  Gladstone,  who  resided  in  Wales,  for  many  years  sat  for  Mid- 
lothian, in  Scotland.     This  rule  there  works  well.     It  brings  many  able  men  into 


THE  HOUSE  OF  REPRESENTATIVES.  149 

Again,  inhabitancy  and  residence  are  different  things.  "  An 
inhabitant  is  a  bona  fide  member  of  the  State,  subject  to  all 
the  requisites  of  law,  and  entitled  to  all  privileges  and  ad- 
vantages under  the  law ;  actual  residence  is  not  essential, 
as  if  a  person  be  a  minister  resident  at  a  foreign  port."  ^ 

The  question  has  been  asked  whether  a  State  may  add  to 
these  qualifications  of  the  Representative.  The  better  opin- 
ion is  that  it  cannot.  The  phrase  "  a  citizen  of  the  United 
States "  asserts,  what  has  often  been  denied,  that  these 
States  are  one  country,  a  nation,  and  not  a  mere  confed- 
eracy. 

Section  2,  Clause  3. — Representatives  and  direct  taxes  shall  be 
apportioned  among  the  several  States  which  may  be  included  within 
this  Union,  according  to  their  respective  numbers,  which  shall  be 
determined  by  adding  to  the  whole  number  of  free  persons,  includ- 
ing those  bound  to  service  for  a  term  of  years,  and  excluding  Indians 
not  taxed,  three  fifths  of  all  other  persons.  The  actual  enumeration 
shall  be  made  within  three  years  after  the  first  meeting  of  the  Con- 
gress of  the  United  States,  and  within  every  subsequent  term  of  ten 
.years,  in  such  manner  as  they  shall  by  law  direct.  The  number  of 
Representatives  shall  not  exceed  one  for  every  thirty  thousand,  but 
each  State  shall  have  at  least  one  Representative ;  and  until  such 
enumeration  shall  be  made,  the  State  of  New  Hampshire  shall  be 
entitled  to  choose  three,  Massachusetts  eight,  Rhode  Island  and 
Providence  Plantations  one,  Connecticut  five,  New  York  six,  New 
Jersey  four,  Pennsylvania  eight,  Delaware  one,  Maryland  six,  Virginia 
ten.  North  Carolina  five.  South  Carolina  five,  and  Georgia  three. 

270.    Apportionment  in  the  Federal  Convention. — No 

other  clause  of  the  Constitution  gave  the  Convention  so 
much  trouble  as  this  one.  The  principal  points  of  contro- 
versy, more  fully  stated  in  Chapter  VIII.,  may  be  again 
enumerated :  ( i )  The  Small-State  party  contended  for  an 
equal  representation ;  the  Large-State  party  for  a  propor- 
tional representation.  Population  was  finally  decided  upon. 
(2)  The  rule  for  determining  the  numbers  was  disputed  no 


Parliament  who  would  otherwise  be  shut  out.  A  man  twenty-one  years  of  age, 
if  otherwise  qualified,  can  sit  in  Parliament.  Such,  too,  is  the  rule  in  one  or 
both  houses  of  most  of  our  state  legislatures. 

*  Desty,  The  Constitution  of  the  U.  S.,  p.  45. 


I50  THE  AMERICAN  GOVERNMENT. 

less  warmly.  It  was  unanimously  agreed  that  all  free  per- 
sons should  be  counted;  nor  was  there  serious  objection 
to  counting  persons  bound  to  service  and  all  Indians  except 
those  not  taxed.  But  what  should  be  done  with  the  slaves? 
It  was  finally  agreed  to  call  them  persons,  and  to  count  five 
of  them  as  three  in  determining  the  respective  numbers  of  the 
States.  (3)  There  were  also  many  opinions  as  to  supplying 
the  treasury,  but  it  was  agreed,  at  last,  that  the  apportion- 
ment of  direct  taxes  should  be  brought  under  the  same  rule 
as  the  apportionment  of  Representatives. 

271.  Ratios  and  Apportionments. — The  Federal  Con- 
vention at  first  agreed  to  put  the  minimum  ratio  of  repre- 
sentation at  40,000,  but  reduced  it  to  30,000  at  the  very 
close  of  the  session  on  a  special  plea  made  by  Washington. 
This  plea  was  that  the  reduction  would  enlarge  the  represen- 
tation, and  so  tend  to  relieve  the  fears  of  those  people  who 
thought  the  new  government  would  be  a  tyranny.  No 
maximum  was  or  could  be  fixed;  the  ratios  must  be  deter- 
mined from  time  to  time  with  reference  to  population  and 
the  convenient  size  of  the  House.^ 

273.  Each  State  to  Have  One. — The  Constitution  wisely 
stipulates  that  each  State  shall  have  at  least  one  Repre- 
sentative. In  1873  Delaware,  Nebraska,  Nevada,  and  Ore- 
gon might  tiave  been  unrepresented  in  the  House  had  it  not 
been  for  this  stipulation,  and  at  the  present  time  several 
States  fall  below  the  ratio.  The  Representatives  of  States 
coming  into  the  Union  after  the  apportionment  is  made, 
are  always  additional  to  the  number  named  in  the  law. 
Thus,  the  law  of  1882  fixed  the  size  of  the  House  at  325 ; 


*  The  first  amendment  proposed  in  1790,  which  failed  to  receive  the 
requisite  number  of  ratifications,  was  in  these  words  : 

"  After  the  first  enumeration  required  by  the  first  article  of  the  Constitu- 
tion, there  shall  be  one  Representative  for  every  30,000,  until  the  number  shall 
amount  to  100,  after  which  the  proportion  shall  be  so  reg^ulated  by  Congress 
that  there  shall  be  not  less  than  100  Representatives,  nor  less  than  one  Repre- 
sentative for  every  40,000  persons,  until  the  number  of  Representatives  shall 
amount  to  200,  after  which  the  proportion  shall  be  so  regulated  by  Congress 
that  there  shall  not  be  less  than  200  Representatives,  nor  more  than  one  Rep- 
resentative for  every  50,000  persons." 


THE  HOUSE  OF  REPRESENTATIVES.  151 

the  admission  of  six  new  States  added  seven  to  that  number. 
Congress,  by  law,  authorizes  every  organized  Territory  to 
send  a  Delegate  to  the  House  of  Representatives,  who  is 
allowed  to  speak  but  not  to  vote.  At  one  time  the  District 
of  Columbia  was  similarly  represented. 

273.  Representation  and  Suffrage. — This  clause  relates 
to  representation  and  not  to  voting.  The  Constitution  de- 
termines the  rule  of  apportionment;  the  States,  subject  to 
the  Fifteenth  Amendment,  determine  their  own  rules  of 
suffrage.  The  representative  population  now  includes  every 
man,  woman,  and  child,  save  Indians  not  taxed,  in  the 
States ;  whereas  in  only  four  States  are  women  permitted  to 
vote  for  Representatives.  An  average  congressional  dis- 
trict now  contains  about  200,000  people,  but  not  more  than 
a  fifth  of  them  are  voters.  Under  the  three-fifths  rule,  a 
Southern  slaveholder  with  1,000  slaves  would  count  601  in 
determining  the  basis  of  representation ;  he  himself  was  the 
only  voter. 

Section  2,  Clause  4. — When  vacancies  happen  in  the  representa- 
tion from  any  State,  the  executive  authority  thereof  shall  issue  writs 
of  election  to  fill  such  vacancies. 

274.  Vacancies. — Vacancies  arise  from  death,  resigna- 
tion, expulsion,  and  accepting  an  incompatible  office.  An 
executive  writ  of  election  is  a  public  proclamation  by  the 
governor  of  the  State  where  the  vacancy  exists,  announcing 
the  vacancy,  and  naming  the  day  on  which  the  people  of 
the  district  will  choose  a  Representative  to  serve  the  remain- 
der of  the  term. 

Section  z,  Clause  5. — The  House  of  Representatives  shall  choose 
their  Speaker  and  other  officers,  and  shall  have  the  sole  power  of 
impeachment. 

275.  The  Speaker,  etc.— The  "other  officers"  of  the 
House  are  the  Clerk,  Sergeant-at-arms,  Doorkeeper,  Post- 
master, and  Chaplain.  The  Speaker  is  always  a  member 
of  the  House ;  the  other  officers  are  not  members,  although 
it  is  the  custom  to  elect  an  ex-member  clerk.  The  clerk 
holds  his  office  until  the  Speaker  of  the  succeeding  House 


152  THE  AMERICAN  GOVERNMENT. 

is  elected,  and  presides  on  that  occasion.  Commonly  this 
election  is  easily  effected,  but  the  Thirty-fourth  Congress 
spent  two  months  and  voted  133  times  before  it  secured  a 
Speaker,  and  the  contest  at  the  opening  of  the  Thirty-sixth 
Congress  was  still  more  protracted.  The  Speaker  has  a 
right  to  vote  on  all  questions,  and  is  required  to  do  so  when 
his  vote  will  decide  the  pending  question,  or  when  the 
vote  is  by  ballot.* 

276.  Amendment  XIV. — Section  3  of  the  Fourteenth  Amend- 
ment introduced  into  the  Constitution  a  new  qualification  for  Sen- 
ators and  Representatives,  and  all  officers,  civil  and  military,  viz. : 

No  person  shall  be  a  Senator  or  Representative  in  Congress,*  or 
elector  of  President  and  Vice  President,  or  hold  any  office,  civil  or 
military,  under  the  United  States,  or  under  any  State,  who,  having 
previously  taken  an  oath,  as  a  member  of  Congress,  or  as  an  officer 
of  the  United  States,  or  as  a  member  of  any  State  legislature,  or  as 
an  executive  or  judicial  officer  of  any  State,  to  support  the  Constitu- 
tion of  the  United  States,  shall  have  engaged  in  insurrection  or  re- 
bellion against  the  same,  or  given  aid  or  comfort  to  the  enemies 
thereof.  But  Congress  may,  by  a  vote  of  two  thirds  of  each  house, 
remove  such  disability. 

By  an  act  approved  May  22,  1872, 'the  disabilities  imposed  by  this 
section  were  removed  from  all  persons  whatsoever,  except  Senators 
and  Representatives  of  the  Thirty-sixth  and  Thirty-seventh  Con- 
gresses, former  officers  in  the  military  and  naval  service  of  the 
United  States,  heads  of  departments,  and  foreign  ministers  of 
the  United  States.  Still  other  perspns  have  been  relieved  by  special 
acts,  and  no  one  now  rests  under  these  disabilities  for  acts  prior  to 
1898. 

277.  Origin  of  the  Three-Fifths  Rvile. — By  the  year  1783,  the 
plan  for  supplying  the  national  treasury  provided  by  the  Articles  of 
Confederation  had  thoroughly  broken  down.  To  meet  this  emer- 
gency, Congress  recommended  that  the  treasury  should  be  supplied 
by  the  several  States,  "  in  proportion  to  the  whole  number  of  white 
and  other  free  citizens  and  inhabitants  of  every  age,  sex,  and  condi- 
tion, including  those  bound  to  service  for  a  term  of  years,  and 
three-fifths  of  all  other  persons  not  comprehended  in  the  foregoing 

*  The  title  Speaker  comes  from  England,  where  it  is  given  to  the  presiding 
officers  of  both  Houses  of  Parliament.  The  Lord  Chancellor  is  Speaker  of  the 
House  of  Lords,  ex  officio.  The  Speaker  of  the  House  of  Commons  is  chosen 
by  the  House,  subject  to  the  formal  permission  and  approval  of  the  crown.  The 
title  had  been  in  use  in  the  States  from  the  very  beginning. 


THE  HOUSE  OF  REPRESENTATIVES.  153 

description,  except  Indians  not  paying  taxes  in  each  State."  This 
amendment  was  not  ratified  by  the  States,  but  it  furnished  the  Con- 
vention of  1787  a  means  of  escape  from  one  of  its  serious  embarrass- 
ments. 

278.  Effects  of  the  Rule. — The  three-fifths  rule  formally  in- 
creased the  representative  power  and  the  direct  taxes  of  the  South- 
ern States,  and  diminished  those  of  the  Northern.  But  the  rule  did 
not  work  as  was  expected.  Only  five  times  have  direct  taxes  been 
imposed  by  Congress,  and  then  for  short  periods;  while  the  South 
received,  down  to  the  Civil  War,  a  large  increase  of  Representatives, 
ranging  at  different  times  from  fifteen  to  thirty  members. 

279.  .  Amendments  XIII.,  XIV. — The  conditions  of  represen- 
tation were  materially  changed  by  the  abolition  of  slavery.  There 
were  now  no  "  other  persons  "  to  whom  the  three-fifths  rule  could 
be  applied.  Amendment  XIV.  formally  modified  the  old  rule,  but 
the  modification  is  inoperative  owing  to  the  effect  of  Amendment 
XV.  Still,  this  amendment  states  the  original  rule  as  it  has  prac- 
tically worked  since  1873 :  "  Representatives  shall  be  apportioned 
among  the  several  States  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  State,  excluding  In- 
dians not  taxed."  Direct  taxes  are  not  mentioned  in  the  amendment, 
but  the  same  rule  would  apply  to  them. 

.  280.  The  Census. — Representatives  could  not  be  apportioned 
according  to  population  unless  the  population  were  enumerated ;  the 
population  of  the  States  would  not  remain  stationary  or  increase  in 
equal  ratios;  besides,  the  admission  of  new  States  to  the  Union 
must  be  provided  for.  To  meet  these  requirements,  the  Constitution 
provided  that  an  actual  enumeration  should  be  made  within  three 
years  after  the  first  meeting  of  Congress,  and  within  every  subse- 
quent term  of  ten  years,  as  Congress  should  direct.  In  a  succeeding 
clause  this  enumeration  is  also  called  the  census. 

The  census  of  the  United  States  has  been  taken  every  ten  years, 
beginning  in  1790.  Previous  to  1790  the  people  of  the  States  had 
never  been  carefully  counted.  Probably  the  Convention  did  not  in- 
tend the  census  to  be  more  than  an  enumeration  of  the  people ;  but, 
beginning  with  1810,  the  government  used  it  more  and  more  as  an 
instrument  for  collecting  and  publishing  other  kinds  of  statistics 
also.  The  first  census  cost  only  $44,377;  while  that  of  1890  cost 
more  than  $10,000,000,  and  filled  about  thirty  octavo  volumes.  More 
recently,  however,  the  decennial  census  has  been  confined  to  smaller 
compass.  There  are  now  established  in  the  Department  of  Com- 
merce and  Labor  both  a  Bureau  of  Statistics  and  a  permanent 
Census  Office ;  and  much  of  the  information  that  has  been  included 
in  the  decennial  census  reports  is  now  published  in  other  ways. 


154  THE  AMERICAfj  GOVERNMENT. 

281.  Indians  not  Taxed. — The  Supreme  Court  has  not  defined 
the  expression  "  Indians  not  taxed."  The  Census  Office  holds  that 
it  applies  to  Indians  maintaining  tribal  relations  and  living  upon 
government  reservations.  The  broken  bands  and  the  scattered  rem- 
nants of  tribes  still  found  in  many  States,  though  generally  in  a 
condition  of  pauperism,  are  included  in  the  enumeration  of  the  peo- 
ple. They  are  regarded  as  having  entered  the  body  of  citizens  and 
become  subject  to  taxation,  although  they  may  be  exempted  by  local 
legislation  or  by  the  accident  of  poverty.* 


*  The  Census  Office  recognizes  three  kinds  of  population. 

1.  The  true  population  embraces  the  total  population  of  all  the  Spates  and 
Territories,  without  regard  to  race,  color,  age,  or  sex. 

2.  The  constitutional  population  embraces  all  the  population  that  must  be 
enumerated  in  order  that  the  apportionment  of  Representatives  and  taxes  may 
be  duly  made.  Excluding  Indians  not  taxed,  it  is  the  same,  within  the  States, 
as  the  true  population.  The  territories  are  not  included  in  the  constitutional 
population. 

3.  The  representative  population  is  the  total  numbers  in  the  States,  accotd- 
ing  to  which  Representatives  and  taxes  are  apportioned  among  them.  Practi- 
cally, it  is  now  the  same  as  the  constitutional  population;  but  when  the  three- 
fifths  rule  was  in  force,  it  was  materially  smaller.  The  constitutional  population 
embraced  all  the  slaves;  the  representative  population  only  three  fifths  of  them. 
The  distinction  is  now  purely  historical. —  Compendium  of  the  U.  S.  Census, 
tSjo,  p.  19. 


CHAPTER  XVIII. 

APPORTIONMENT  OF  REPRESENTATIVES  UNDER  THE 
CONSTITUTION/ 

Several  of  the  different  Congresses  that  have  dealt  with 
this  subject,  have  found  it  only  less  difficult  than  the  Fed- 
eral Convention  found  the  framing  of  the  original  rules. 
An  historical  resume  will  be  given. 

282.  Meaning  of  the  Rule. — Simple  as  the  rule  seems  at 
first  view,  the  first  Congress  that  was  called  upon  to  apply 
it  practically  was  divided  in  opinion  as  to  its  meaning.  The 
fundamental  question  was,  whether  the  Nation  should  be 
dealt  with  as  a  whole,  or  as  made  up  of  the  several  States. 
Should  the  aggregate  representative  population  of  the  Union 
be  divided  by  the  ratio  to  ascertain  the  size  of  the  House? 
Or  should  the  State  populations  severally  be  so  divided  and 
the  quotients  then  be  added?  The  first  method  would  give 
the  larger  House,  since  there  would  be  but  a  single  unrepre- 
sented fraction,  while  the  second  method  would  give  as  many 
fractions  as  there  were  States.  This  is  the  question  of  rep- 
resenting fractions.  Different  methods  have  been  followed 
at  different  times. 

283.  The  Method  of  1 793-1843. — The  Federalists  in  the 
Second  Congress,  which  was  the  first  one  to  deal  with  the 
subject,  contended  for  the  first  plan ;  the  Anti-federalists, 
for  the  second  plan.  After  a  heated  contest.  Congress 
passed  a  bill  based  on  the  National  principle.     President 


*  See  the  article  "  Apportionment,"  in  Lalor's  Cyclopcedia.  Also  the  follow- 
ing reports:  House  of  Representatives,  51st  Congress,  second  session,  No. 
3380;  Senate,  same  Congress,  same  session,  No.  962,  Part  II.;  Official  Congres- 
sional Directory,  W.  H.  Michael,  1891;  Official  Congressional  Directory,  A.  J. 
Halford,  1904. 

(155) 


156  THE  AMERICAN  GOVERNMENT. 

Washington,  after  submitting  to  his  Cabinet  the  question 
whether  he  should  sign  the  bill,  and  receiving  from  Hamil- 
ton and  Knox  an  affirmative  answer,  and  from  Jefferson  and 
Randolph  a  negative  answer,  vetoed  it.  A  new  bill  framed 
on  the  State  principle  was  then  passed  and  approved.  It 
provided  that  the  House  should  be  composed  of  members 
elected  agreeably  to  a  ratio  of  one  member  for  every  33,cxx) 
persons  in  each  State,  computed  according  to  the  rule  fur- 
nished by  the  Constitution.  No  account  was  taken  of  frac- 
tions. The  apportionments  made  under  the  first  five  cen- 
suses all  conformed  to  this  rule,  but  with  a  change  of  ratios. 

284.  Attempt  to  Change  the  Rule  in  1832. — As  the 
ratios  became  larger,  and  the  States  more  numerous  and 
more  populous,  the  unrepresented  fractions  became  larger 
and  more  numerous.  It  became  apparent  that  the  method 
of  1793  was  unjust  and  unrepublican.  Two  millions  of 
people  in  one  State  had  much  more  representative  power 
than  the  same  number  in  a  half  dozen  States.  Mr.  Web- 
ster^ pointed  out  in  1832  that,  under  the  ratio  of  47,700, 
then  proposed  for  the  ensuing  apportionment,  New  York 
would  have  40  Representatives,  while  the  New  England 
States,  with  a  population  35,000  greater,  would  have  but 
38;  that  seven  States  named,  having  together  123  mem- 
bers, had  aggregate  fractions  of  but  53,000,  while  Vermont 
and  New  Jersey  alone,  with  but  11  members,  had  a  joint 
fraction  of  75,000;  and  that  Pennsylvania  would  have  as 
many  members  as  Vermont,  New  Hampshire,  Massachu- 
setts, and  New  Jersey,  while  her  population  was  130,000 
less  than  theirs.  The  Senate,  following  Mr.  Webster's 
lead,  at  first  voted  to  reverse  the  decision  of  1793,  but  after- 
wards concurred  with  the  House  in  continuing  the  old  rule. 

285.  The  Method  of  1843. — The  rule  adopted  in  1793 
was  reversed  in  the  sixth  apportionment.  Th?  law  of  1843 
established  a  representative  ratio  of  70,680 ;  gave  every  State 
as  many  Representatives  as  the  number  of  times  its  popu- 

»  See  bis  Works,  Vol.  III.,  p.  369. 


APPORTIONMENT  OF  REPRESENTATIVES.   157 

lation  contained  this  ratio,  and  then  gave  an  additional 
Representative  to  every  State  having  a  fraction  greater  than 
half  the  said  ratio.  Since  this  act,  fractions  have  always 
been  represented,  and  the  tendency  has  been  to  increasing 
complexity  of  method. 

286.  The  Method  of  1853-1863^ — A  ratio  that  yielded  small 
fractions  in  some  States  would  sometimes  yield  large  fractions  in 
others.  The  result  was  decennial  contests  over  ratios,  States  favor- 
ing the  ratio  that  would  give  them  the  largest  representation.  To 
cut  off  such  controversies,  it  was  provided  in  the  Census  Act  of 
1850  that  the  House  of  Representatives  should  consist  of  233  mem- 
bers; that  the  Secretary  of  the  Interior  should  divide  the  repre- 
sentative population  of  the  whole  country  by  233  to  obtain  a  ratio; 
that  he  should  then  divide  the  population  of  every  State  by  this  ratio ; 
that  he  should  assign  to  every  State  as  many  Representatives  as  the 
number  of  times  its  representative  population  contained  this  ratio; 
and  finally,  that  he  should  assign  an  additional  Representative  to 
each  of  the  States  having  the  largest  fractions,  until  a  total  of  233 
members  was  reached.  The  Secretary  of  the  Interior  accordingly 
made  two  apportionments, — after  the  censuses  of  1850  and  i860; 
but  by  an  act  of  1852  Congress  gave  an  additional  member  to  Cali- 
fornia, and  by  an  act  of  1862  it  gave  eight  additional  members  to 
as  many  States. 

287.  The  Method  of  1873-1903.— In  the  apportionments  based 
on  the  ninth,  tenth,  eleventh,  and  twelfth  censuses,  the  prin- 
ciple of  the  Act  of  1850  was  adhered  to,  with  minor  variations ;  but 
in  every  case  Congress  fixed  the  number  of  members  and  made  the 
apportionment  after  the  census  had  been  taken. 

In  1870  the  populations  of  Delaware,  Nebraska,  Nevada,  and 
Oregon  each  fell  below  the  final  ratio  agreed  upon.  Congress  first 
fixed  the  number  of  Representatives  at  283.  Next  it  subtracted  the 
population  of  these  four  States  from  the  total  population  of  the 
States  (not  including  Territories),  and  divided  the  remainder  by 
279,  the  number  of  Representatives  fixed  on  less  the  four  to  which 
the  four  States  were  entitled  imder  the  Constitution,  which  gave  a 
ratio  of  135,239.  To  each  State  the  law  then  assigned  as  many 
Representatives  as  the  number  of  times  its  representative  population 
contained  this  ratio,  and  enough  more  were  assigned  for  the  largest 
fractions  to  make  the  total  283.  By  a  subsequent  act,  however,  an 
additional  Representative  was  given  to  each  of  nine  States  named 
in  the  act,  making  292  in  all.  This  result  was  arrived  at  by  making 
new  calculations  based  on  the  number  290,  and  finally  assigning  two 
additional  Representatives  for  large  unrepresented  fractions. 


158  THE  AMERICAN  GOVERNMENT. 

The  act  of  1882  was  based  on  calculations  made  in  strict  accord- 
ance with  the  principle  of  the  Act  of  1850. 

In  1890  the  representative  population  of  the  States  was  61,908,906. 
This  number  was  divided  by  the  numbers  332, 333.  etc.,  to  375  success- 
sively,  and  then  the  population  of  each  State  by  the  resulting  quo- 
tients. The  number  356  produced  the  ratio  I73,90i ;  and  this  ratio, 
applied  to  the  States  one  by  one,  gave  no  State  a  less  number  of 
Representatives  than  it  had  under  the  previous  apportionment,  pro- 
vided the  States  having  the  major  fractions  were  allowed  each  an 
additional  Representative.  The  quotients  aggregated  339,  and  17, 
the  diflference  between  this  number  and  356,  just  equalled  the  num- 
ber of  major  fractions.  The  House  was  therefore  made  to' consist 
of  356  members,  the  number  assigned  to  any  State  being  equal  to 
the  number  of  times  its  population  contained  173,901,  plus  one  if  it 
had  a  major  fraction.  No  State  had  a  moiety  of  the  ratio  left  un- 
represented. The  largest  unrepresented  fraction  was  that  of  New 
York,  85,951,  while  a  moiety  was  86,952.  But  this  measure  could 
not  probably  have  been  carried,  had  not  a  number  been  found  (356) 
that  neither  reduced  the  representation  of  any  State,  nor  left,  after 
the  majority  fractions  were  taken  care  of,  a  single  unrepresented 
moiety. 

The  method  followed  in  making  the  apportionment  based  on  the 
census  of  1900  was  similar  to  that  in  the  one  preceding,  and  also  to 
that  of  the  second  apportionment  following  the  census  of  1870.  It 
was  found  that  the  number  386  was  the  lowest  which  would  not  re- 
duce the  representation  of  any  State. 

288.    Numbers  of  the  House  and  Ratios  of  Representation. — 
The  following  table  shows,  for  each  period,  the  size  of  the  House 
and  the  ratio  of  representation.    The*  number  of  the  House  was  in- 
,  creased,  however,  whenever  a  new  State  was  admitted : 

Period.  Size  of  House.        Ratio. 

1789-1793 65 

1793-1803 los  33,000 

1803-1813 141  33,000 

1813-1823 181  35,000 

1823-1833 213  40,000 

1833-1843 240  47,700 

1843-1853 223  70,680 

1853-1863  .  _ 234  93423 

1863-1873 241  127,381 

1873-1883 292  131,425 

1883-1893 325  151,911 

1893-1903 356  173.901 

1903-         386  194,182 


APPORTIONMENT  OF  REPRESENTATIVES. 


159 


Table  Showing  the  Several  Apportionments  of  Representatives 
to  the  States. 


1 

0 

00 

8 

00 

00 

0 

00 

0 

00 

1 

0 

00 

i 

1 
1 

7 

2 

4 

I 
2 

II 
I 

22 

13 
II 

8 
II 

6 

4 
6 

13 
12 

7 
7 

15 
I 
6 
I 
2 
8 

34 
9 
I 

21 
2 

30 
2 

7 

2 
10 
13 

1 

Alabama . . 

3 

5 

7 

I 

7 

2 
2 

6 

3 
3 

8 
4 
4 

8 

1 

I 
4 
I 
2 
10 

9 

7 

Arkansas  

California 

8 

Colorado 

■i 

Connecticut 

Delaware 

5 
I 

7 
I 

7 

I 

7 

2 

6 

1 

6 
I 

4 
I 

4 
I 
I 
8 

4 

I 
I 
7 

4 

I 
2 
9 

5 

T 

Florida 

3 

TI 

Georgia 

3 

2 

4 

6 

7 

9 

8 

Idaho 

T 

Illinois 

I 
3 

3 

7 

7 
10 

9 
II 

2 

14 

II 

6 

I 
9 
5 
5 
5 

10 
6 
2 
5 
9 

19 
13 
9 
•3 
10 
6 

II 
9 

13 

20 

13 
II 

7 

II 

6 

4 

6 

12 

II 

5 

7 

14 

25 
13 

Indiana 

Iowa 

IT 

Kansas 

8 

Kentucky 

2 

6 

10 

12 
3 
7 
9 

13 

13 
3 
8 
8 

12 

10 
4 
7 
6 

10 
3 

10 

4 

6 

6 

II 

4 

II 

Louisiana 

7 

Maine 

4 

Maryland 

6 

8 

• 

8 
14 

9 

J7 

9 
20 

6 

Massachusetts 

Michigan 

14 
12 

Minnesota 

I 

Mississippi 

I 
I 

2 
2 

4 

5 

5 
7 

Missouri 

16 

Montana 

I 

Nebraska 

I 
I 
3 
7 

'I 

3 

I 
2 
7 
34 
9 

6 

Nevada 

1 

New  Hampshire 

New  Jersey 

New  York 

3 
4 
6 

5 

4 

5 

10 
10 

I 

17 
12 

6 
6 

27 
13 

6 
6 

34 
13 

1 

40 
13 

4 

5 

34 

9 

3 

5 
33 

3 

5 

31 
7 

2 
10 

37 

North  Carolina 

North  Dakota 

10 
2 

Ohio 

6 

14 

19 

21 

21 

19 
I 

24 

2 

4 

20 

I 

27 
2 

5 

21 

I 

28 

2 

7 

21 

Oregon  

2 

Pennsylvania 

Rhode  Island 

South  Carolina 

South  Dakota 

8 
I 

5 

13 

2 
6 

18 
2 
8 

23 
2 

.9 

26 
2 
9 

28 

2 
9 

24 
2 
7 

25 
2 
6 

32 

2 

7 

2 

Tennessee 

3 

6 

9 

13 

II 

10 

2 

8 

4 

10 
6 

10 
II 

10 

16 

Utah  . 

T 

Vermont 

2 
19 

4 
22 

6 
23 

5 
22 

5 
21 

4 
15 

3 
13 

,? 

3 
9 

2 
10 

2 

10 

2 

4 
10 

I 

2 

Virginia   

10 

10 

Washing[ton 

3 

West  Virginia 

}. 

4 
9 

s 

Wisconsin  

3 

6 

II 

Wyoming 

I 

CHAPTER  XIX. 

COMPOSITION  AND  ORGANIZATION   OF  THE  SENATE, 

Article  I. 

Section  3,  Clause  i. — The  Senate  of  the  United  States  shall  be 
composed  of  two  Senators  from  each  State,  chosen  by  the  legisla- 
ture thereof,  for  six  years ;  and  each  Senator  shall  have  one  vote. 

289.  Number,  Election,  and  Term  of  Senators. — Every 
item  of  this  clause  was  the  subject  of  controversy  in  the 
Convention.  When  it  had  been  settled  that  Congress  should 
consist  of  two  branches,  and  that  representation  should  be 
equal  in  the  Senate  and  proportional  in  the  House,  there 
remained  the  questions :  How  shall  the  Senators  be  chosen  ? 
For  what  term  shall  they  serve?  and,  How  shall  they  vote? 
Some  said  they  should  be  elected  by  the  ^ouse  of  Represen- 
tatives; some,  that  the  President  should  appoint  them  from 
a  list  of  candidates  named  by  the  State  legislatures ;  some, 
that  they  should  be  elected  by  the  people;  and  Mr.  Hamil- 
ton proposed  that  they  be  elected  by  electors  chosen  by  the 
people  of  the  several '  States.  The  rule  adopted  was  the 
one  most  consistent  with  the  general  character  of  the  Con- 
stitution, Four  years,  six  years,  seven  years,  and  life,  or 
good  behavior,  were  named  as  a  suitable  term.  Six  years 
combines  both  permanency  in  the  Senate  and  responsibility  in 
the  Senator.  An  equal  vote  in  the  Senate  is  not  the  same 
thing  as  voting  by  States;  the  individual  vote  gives  less 
prominence  to  the  State  idea.  Nevada,  with  a  population  of 
42,335,  has  the  same  number  of  Senators  as  New  York,  with 
7,268,894.  And  the  rule  of  the  Constitution  which  makes 
this  possible,  is  the  most  permanent  part  of  that  instrument 
(see  Art.  V.). 

Section  3,  Clause  2. — Immediately  after  they  shall  be  assembled 
in  consequence  of  the  first  election,  they  shall  be  divided  as  equally 

(166) 


THE  SENATE.  l6l 

as  may  be  .into  three  classes.  The  seats  of  the  Senators  of  the  first 
class  shall  be  vacated  at  the  expiration  of  the  second  year,  of  the  sec- 
ond class  at  the  expiration  of  the  fourth  year,  and  of  the  third  class 
at  the  expiration  of  the  sixth  year,  so  that  one  third  may  be  chosen 
every  second  year ;  and  if  vacancies  happen  by  resignation,  or  other- 
wise, during  the  recess  of  the  legislature  of  any  State,  the  executive 
thereof  may  make  temporary  appointments  until  the  next  meeting 
of  the  legislature,  which  shall  then  fill  such  vacancies. 

290.  Classes  of  Senators. — On  May  15,  1789,  the  twenty 
Senators  present  from  the  ten  States  were  divided  in  ac- 
cordance with  this  rule.  They  were  first  put  into  three 
classes,  care  being-  taken  not  to  have  the  two  Senators  from 
any  State  in  the  same  class,  and  the  time  for  which  the 
classes  should  serve  was  then  determined  by  lot.  Class  one, 
consisting  of  seven  Senators,  should  retire  in  two  years; 
class  two,  of  the  same  number,  in  four  years ;  class  three,  of 
six,  in  six  years.  It  was  ordered  that  when  additional  Sen- 
ators took  their  seats,  they  should  be  placed  by  lot  in  these 
classes,  but  in  such  manner  as  to  keep  them  as  nearly  equal 
in  number  as  possible.  Accordingly,  the  New  York  Sena- 
tors were  placed  in  classes  three  and  one;  the  North  Caro- 
lina Senators  in  two  and  three,  and  the  Rhode  Island  Sena- 
tors in  one  and  two. 

• 
The  years  in  which  the  classes  retire  may  be  thus  exhibited: 

Class  I,  1791,  1797,  1803 1899,  1905,  19H 

Class  2,  1793,  1799,  1805 1901,  1907,  1913 

Class  3,  1795,  1801,  1807 1903,  1909,  1915- 

The  time  that  a  Senator  from  a  newly  admitted  State  serves  de- 
pends on  the  date  of  the  State's  admission  to  the  Union,  and  on  the ' 
state  of  the  classes  at  the  time.  He  may  serve  six  years,  he  may 
serve  but  a  single  day.  California  was  admitted  to  the  Union  Sep- 
tember 9,  1850.  The  California  Senators  fell  into  classes  three  and 
one,,  and  John  C.  Fremont,  who  had  drawn  one  (or  the  short  term), 
served  only  until  March  4,  1851. 

291.  The  Senate  a  Permanent  Body. — A  House  of 
Representatives  continues  two  years,  and  an  executive  ad- 
ministration four.  But  the  Senate,  Hke  the  Old  Congress, 
is  a  perpetual  body,  and  it  is  the  custom  to  keep  up  a 
perfect  organization.     This   fact  gives  the  Senate  dignity 

AM.    GOV. — II. 


l62  THE  AMERICAN  GOVERNMENT. 

and  adds  strength  to  the  government.  One  reason  for  this 
was  to  show  to  the  world  that  the  American  government 
did  not  come  to  an  end  every  two  or  four  years.  A  Senator 
appointed  by  a  governor  to  fill  a  vacancy  holds  his  seat 
until  the  legislature  elects  a  successor  to  the  former  incum- 
bent, or,  if  it  fails  sooner  to  elect,  to  the  end  of  the  session 
of  the  legislature  following  his  appointment.  If  a  legis- 
lature fails  to  elect,  having  had  an  opportunity,  the  governor 
cannot  fill  the  vacancy.^ 

Section  3,  Clause  3. — No  person  shall  be  a  Senator  who  shall  not 
have  attained  to  the  age  of  thirty  years,  and  been  nine  years  a  citi- 
zen of  the  United  States,  and  who  shall  not,  when  elected,  be  an  in- 
habitant of  that  State  for  which  he  shall  be  chosen. 

292.  Senator's  Qualifications. — The  remarks  made  con- 
cerning the  qualifications  of  the  Representative  are  of  equal 
application  to  the  Senator,  only  the  greater  dignity  and  re- 
sponsibility of  the  Senator  call  for  a  greater  age  and  a 
longer  citizenship.  Two  men  elected  to  the  Senate  have  been 
declared  disqualified  by  reason  of  an  insufficient  citizenship: 
Albert  Gallatin,  of  Pennsylvania,  in  1798,  and  James  Shields, 
of  Illinois,  in  1849. 

Section  3,  Clause  4. — The  Vice  President  of  the  United  States 
shall  be  President  of  the  Senate,  but  shall  have  no  vcJte,  unless  they 
be  equally  divided. 

293.  Vice  President's  Vote. — As  the  Vice  President  is 
not  a  member  of  the  Senate,  he  is  not,  like  the  Speaker  of 
the  House,  entitled  to  a  vote.  His  casting  vote  is  of  no 
avail  unless  given  in  favor  of  the  pending  measure ;  for 
every  question  is  lost  unless  it  receives  a  majority.  In  the 
early  years  of  the  government,  when  the  Senate  was  small 
and  equally  divided  politically,  the  Vice  President's  posi- 
tion was  very  important.  John  Adams  had  an  "  unusual 
number  of  opportunities  to  exercise  personal  power  in  im- 
portant matters.     Certainly  no  other  Vice  President  has  had 

*  This  point  was  definitely  decided  at  the  first  regular  session  of  the  Fifty- 
third  Congress,  in  the  cases  of  Senators  appointed  under  such  circumstances  by 
the  governors  of  Montana,  Washington,  and  Wyoming. 


THE  SENATE.        •  163 

the  like,  and  probably  no  officer  of  the  United  States  has 
ever  been  able  to  do  so  much  by  positive  acts  of  individual 
authority.  .  .  .  No  less  than  twenty  times  during  the 
life  of  the  First  Congress  he  voted  for  the  Federalists."  ^ 

Section  3,  Clause  5. — The  Senate  shall  choose  their  other  officers, 
and  also  a  president  pro  tempore,  in  the  absence  of  the  Vice  Presi- 
dent, or  when  he  shall  exercise  the  office  of  President  of  the  United 
States. 

294.  Officers  of  the  Senate. — Under  the  head  of  "  other 
officers  "  the  Senate  elects  a  Secretary,  Sergeant-at-arms, 
Chaplain,  and  two  Doorkeepers.  The  custom  is  for  the 
Vice  President,  as  soon  as  convenient  after  he  takes  the 
oath  of  office,  to  absent  himself  from  the  chair  for  a  day,  or 
longer,  in  order  that  the  Senate  may  elect  a  President  pro 
tempore.  This  office  is  held  at  the  pleasure  of  the  Senate. 
As  the  president  pro  tempore  is  a  member  of  the  Senate,  he 
has  a  vote  on  all  questions.  Accordingly,  a  tie  vote  when  a 
Senator  is  in  the  chair  is  always  lost. 

Note. — Within  the  last  few  years  the  proposition  to  have  the  Senators 
elected  directly  by  the  people  has  been  received  with  much  favor.  The  House 
of  Representatives  has  three  times  voted  by  more  than  a  two-thirds  majority 
to  submit  to  the  State  legislatures  the  following  as  an  amendment  to  the  Con- 
stitution, but  the  Senate  has  not  concurred: 

"  That  in  lieu  of  the  first  paragraph  of  section  3  of  Article  I.  of  the  Con- 
stitution of  the  United  States,  and  in  lieu  of  so  much  of  paragraph  2  of  the 
same  section  as  relates  to  the  filling  of  vacancies,  and  in  lieu  of  all  of  para- 
graph I  of  section  4  of  said  Article  I.,  in  so  far  as  the  same  relates  to  any 
authority  in  Congress  to  make  or  alter  regulations  as  to  the  times  or  manner  of 
holding  elections  for  Senators,  the  following  be  proposed  as  an  amendment  to 
the  Constitution,  which  shall  be  valid  to  all  intents  and  purposes  as  part  of  the 
Constitution  when  ratified  by  the  legislatures  of  three  fourths  of  the  States: 

"  The  Senate  of  the  United  States  shall  be  composed  of  two  Senators  from 
each  State,  elected  by  the  people  therof,  at  large,  for  six  years;  and  each  Sena- 
tor shall  have  one  vote.  The  electors  in  each  State  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the  State  legislature. 

"  The  times,  places,  and  manner  of  holding  elections  for  Senators  shall  be 
as  prescribed  in  each  State  by  the  legislature  thereof. 

"  When  vacancies  happen  in  the  representation  of  any  State  in  the  Senate, 
the  executive  authority  of  such  State  shall  issue  writs  of  election  to  fill  such 
vacancies;  provided  that  the  legislature  of  any  State  may  empower  the  execu- 
tive thereof  to  make  temporary  appointments  until  the  people  fill  the  vacancies 
by  election,  as  the  legislature  may  direct. 

"  This  amendment  shall  not  be  so  construed  as  to  affect  the  election  or  term 
of  any  Senator  chosen  before  it  becomes  valid  as  part  of  the  Constitution." 

'  Morse,  John  Adams,  pp.  244,  249,  250. 


CHAPTER  XX. 

ELECTIONS  OF  CONGRESSMEN. 

Article  I. 

Section  4,  Clause  i. — The  times,  places,  and  manner  of  holding 
elections  for  Senators  and  Representatives  shall  be  prescribed  in 
each  State  by  the  legislature  thereof ;  but  the  Congress  may  at  any 
time  by  law  make  or  alter  such  regulations,  except  as  to  the  places 
of  choosing  Senators. 

295.  State  Control. — The  grant  to  the  legislatures  of 
power  to  prescribe  the  times,  places,  and  manner  of  holding 
these  elections  was  a  concession  to  the  States.  It  was  made 
partly  to  take  advantage  of  the  existing  machinery  for  con- 
ducting elections,  but  mainly  to  avoid  arousing  State  jeal- 
ousy. There  is  an  evident  propriety  in  giving  the  legisla- 
tures immediate  control  of  the  senatorial  elections,  since 
the  Senators  represent  the  States.  Then  the  States  could 
manage  the  elections  of  Representatives  more  easily  and 
cheaply  than  the  Nation,  and  with  more  satisfaction  to  the 
people.  A  denial  to  the  States  of  participation  in  the  man- 
agement of  these  elections  would  have  defeated  the  whole 
scheme. 

296.  Limit  of  State  Control. — Still,  in  a  National  sys- 
tem it  would  not  do  to  put  these  elections  in  the  exclusive 
control  of  the  States.  Mr.  Hamilton  said  at  the  time: 
"  Every  government  ought  to  contain  in  itself  the  means  of 
its  own  preservation ;  while  it  is  perfectly  plain  that  the 
States,  or  a  majority  of  them,  by  failing  to  make  the  neces- 
sary regulations,  or  by.  making  improper  ones,  could  break 
up  or  prevent  the  first  election  of  the  houses  of  Congress."  ^ 
Hence  the  provision   that  Congress  may  at  any  time  by 


*  The  Federalist,  No.  59. 

(164) 


ELECTIONS  OF  CONGRESSMEN.  165 

law  make  or  alter  such  regulations  as  the  States  may  make, 
except  as  to  the  places  of  choosing  Senators.  Obviously, 
Congress  should  not  name  the  places  for  electing  Senators, 
as  that  would  involve  the  seat  of  the  State  government. 
With  this  exception,  Congress  has  absolute  power  over  the 
whole  subject.  This  grant  was  not  seriously  objected  to  in 
the  Federal  Convention,  but  in  the  State  conventions  it 
was  attacked  with  great  violence.  The  use  of  the  power  is 
discretionary  with  Congress,  and  it  was  a  full  half  century 
before  it  was  used  at  all.  This  abstinence  was  due  to  re- 
gard for  State  feeling,  to  a  desire  to  save  expense,  and  to 
the  fact  that  State  control  had  proved  satisfactory. 

297.  National  Legislation. — Previous  to  the  Twenty- 
eighth  Congress,  the  States  exclusively  controlled  the  elec- 
tions of  Representatives.  Some  chose  them  by  districts, 
one  or  more  from  a  district,  and  some  by  the  State  at  large ; 
the  first  being  called  the  district  plan,  and  the  second  the 
general-ticket  plan.  The  objection  to  the  general-ticket 
plan  is  that  it  strongly  tends  to  give  all  the  members  to  one 
political  party ;  a  State  majority,  no  matter  how  small, 
commonly  determines  the  political  complexion  of  the  whole 
State  delegation.  It  is  clear  that  the  district  plan  leads  to 
the  juster  representation  of  the  people.  Hence  it  was  pro- 
vided in  the  Apportionment  Act  of  1842:  "That  in  every 
case  where  a  State  is  entitled  to  more  than  one  Representa- 
tive, the  number  to  which  such  State  shall  be  entitled  under 
this  apportionment  shall  be  elected  by  districts  composed 
of  contiguous  territory,  equal  in  number  to  the  number 
of  Representatives  to  which  the  said  State  may  be  entitled, 
no  one  district  electing  more  than  one  Representative." 
This  rule,  violently  opposed  at  the  time,  has  been  incor- 
porated in  every  subsequent  apportionment  law.  Since  1872 
Congress  has  prescribed  that  the  districts  shall  contain,  as 
nearly  as  practicable,  an  equal  number  of  inhabitants.  In 
1 87 1  Congress  provided  that  all  votes  for  Representatives 
must  be  by  written  or  printed  ballots,  and  in  1872  that 
the  elections  should  be  held  on  the  Tuesday  next  after  the 


l66  THE  AMERICAN  GOVERNMENT. 

first  Monday  in  November  in  every  even  year.  Subsequent- 
ly the  States  having  in  their  constitutions  clauses  fixing  a 
different  day,  were  excepted  from  the  pperation  of  this  last 
rule.  In  Oregon  the  day  is  the  first  Monday  in  June;  in 
Vermont  the  first  Tuesday,  and  in  Maine  the  second  Mon- 
day, in  September ;  in  the  other  States  it  is  the  Tuesday  next 
after  the  first  Monday  in  November.  In  1899  Congress 
permitted  the  use  of  voting  machines  in  elections  of  Repre- 
sentatives. The  Act  of  1901  provides  that  the  districts  shall 
consist  of  "  contiguous  and  compact  "  territory.  , 

298.  Districting  the  States. — The  division  of  a  State 
into  districts  is  left  to  its  legislature.  This  duty  it  com- 
monly performs  at  its  first  meeting  after  Congress  makes 
the  decennial  apportionment.  It  is  subject  only  to  two 
rules:  that  the  territory  of  the  districts  must  be  contiguous 
and  compact,  and  that  they  must  contain  relatively  equal 
populations.  Sometimes  the  division  is  made  in  such  a  way 
as  to  give  the  political  party  having  a  majority  in  the  legisla- 
ture an  undue  advantage.  This  is  done  by  combining  coun- 
ties, townships,  etc.,  so  as  to  give  to  one  party  small  or  mod- 
erate majorities  in  as  large  a  number  of  districts  as  possible, 
and  to  the  other  party  large  majorities  in  as  few  as  possible. 
This  process  is  known  as  gerrymandering.^  Some  States 
provide  in  their  constitutions  for  decennial  districting ;  most, 
however,  do  not,  and  redistricting  is  not  unfrequent.  The 
Ijiw  in  regard  to  contiguity  is  held  to  be  satisfied  when  coun- 
ties or  townships  comprising  a  district  touch  at  the  corners, 
and  the  law  requiring  as  nearly  as  practicable  an  equal  num- 
ber of  inhabitants  rests  lightly  on  State  legislatures.  Con- 
siderable discrepancies  are  common  when  districts  are  first 
formed,  and  these  the  growth  of  population  tends  to  enlarge. 


* "  Gerrymander.  In  humorous  imitation  of  salamander,  from  a  fancied 
resemblance  to  this  animal  of  a  map  of  one  of  the  districts  formed  in  the  re- 
districting  of  Massachusetts  by  the  legislature  in  :8ii,  when  Elbridge  Gerry 
was  governor.  The  redistricting  was  intended  (it  was  believed  at  the  instigation 
of  Gerry)  to  secure  unfairly  the  election  of  a  majority  of  Democratic  senators. 
It  is  now  known,  however,  that  he  was  opposed  to  the  measure." — The  Century 
Dictionary. 


ELECTIONS  OF  CONGRESSMEN.  167 

It  is  not  uncommon  for  one  district  in  a  State  to  contain 
double  the  population  of  another  district. 

299.  Representatives  at  Large. — Since  1842  Congress  has  some- 
times allowed  States  receiving  one  or  more  additional  Representa- 
tives under  a  new  apportionment,  to  elect  them  for  the  whole  State 
when  it  is  impossible  or  difficult  for  the  legislature  to  district  the 
State  in  time  for  the  ensuing  election,  or  when  it  is  not  desirable  to 
do  so.  These  are  called  Representatives  at  large.  Pennsylvania  at 
one  time  had  three  such  Representatives.  The  law  of  1882  provided 
that,  in  cases  where  no  change  was  made  in  the  number  assigned  to 
a  State,  and  the  legislature  did  not  otherwise  provide,  the  former 
districting  should  stand.  In  case  the  number  was  increased,  the  ad- 
ditional Representative  or  Representatives  might  be  elected  at  large, 
and  the  former  number  by  districts,  as  before.  It  provided  also  that 
"  if  the  number  hereby  provided  for  shall  in  any  State  be  less  than  it 
was  before  the  change  hereby  made,  then  the  whole  number  to  such 
State  hereby  provided  for  shall  be  elected  at  large,  unless  the  legis- 
latures of  said  States  have  provided,  or  shall  otherwise  provide, 
before  the  time  fixed  by  law  for  the  next  election  of  Representatives 
therein." 

300.  The  Election  of  Senators. — The  Constitution  pre- 
scribes that  the  State  legislatures  shall  elect  the  Senators, 
but  is  silent  as  to  the  manner  of  electing  them.  Shall  the 
two  houses  meet  in  joint  convention,  a  majority  of  all  elect- 
ing? Or  shall  they  vote  separately,  a  majority  of  each 
house  being  required  to  elect?  For  three  fourths  of  a  cen- 
tury each  State  answered  these  questions  for  itself.  Serious 
disagreements  between  houses  ensued,  and  legislatures  were 
sometimes  broken  up.  To  put  an  end  to  such  controversies, 
Congress,  in  1866,  passed  a  law  regulating  the  election  of 
Senators.  This  law  requires  the  legislature  of  each  State 
elected  next  preceding  the  expiration  of  the  time  for  which 
any  Senator  was  chosen  to  represent  such  State,  on  the  sec- 
ond Tuesday  after  its  meeting  and  organization,  to  proceed 
to  elect  a  Senator  in  conformity  with  these  rules : 

I.  Each  house  shall  name  or  propose,  by  a  viva  voce 
vote  of  each  member  present,  one  person  for  Senator;  the 
next  day  at  12  o'clock  the  two  houses  shall  meet  in  joint 
assembly,  and  if  it  appears  from  the  reading  of  the  journals 


l68  THE  AMERICAN  GOVERNMENT. 

of  the  previous  day's  proceedings,  that  the  same  person  has 
received  a  majority  of  all  the  votes  in  each  house,  he  shall  be 
declared  duly  elected. 

2.  If  no  election  has  been  made,  the  joint  assembly  shall 
then  proceed  to  vote  viva  voce  for  Senator,  and  if  any  per- 
son receive  a  majority  of  all  the  votes  of  the  joint  assembly, 
a  majority  of  all  the  members  elected  to  both  houses  being 
present  and  voting,  he  shall  be  declared  duly  elected, 

3.  If  a  choice  is  not  made  on' this  day,  then  the  two 
houses  shall  meet  in  joint  assembly  each  succeeding  day, 
at  the  same  hour,  and  shall  take  at  least  one  vote,  as  before, 
until  a  Senator  shall  be  elected. 

4.  If  a  vacancy  exist  on  the  meeting  of  a  legislature, 
said  legislature  shall  proceed  on  the  second  Tuesday  after 
meeting  and  organization  to  fill  said  vacancy,  as  in  the  pre- 
vious case ;  and  if  a  vacancy  occurs  when  the  session  is  in 
progress,  it  shall  proceed  by  the  same  steps  to  fill  it  on  the 
second  Tuesday  after  it  has  received  notice  of  the  vacancy. 

Section  4,  Clause  2. — The  Congress  shall  assemble  at  least  once 
in  every  year,  and  such  meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  law  appoint  a  different  day. 

301.  Number  of  Sessions. — Accordingly,  every  Con- 
gress must  hold  at  least  two  sessions.  Some  Congresses 
have  held  three,  the  President  having  called  an  extra  session, 
or  Congress  itself  having  by  law  or  by  adjournment  provided 
for  one.  The  term  of  a  Congress  begins  at  12  m.  March  4, 
following  the  election  of  Representatives,  1901,  1903,  etc., 
and  continues  until  12  m.  of  the  next  odd  year,  1903,  1905, 
etc.  Still,  since  1821  the  ordinary  meeting  day  has  been  the 
first  Monday  of  December  following  the  beginning  of  the 
Representatives'  term.  There  is  nothing  to  prevent  the  first 
session,  called  the  long  one,  continuing  until  the  first  Mon- 
day of  the  next  December,  when  it  must  end,  that  the  new 
or  short  session  may  begin.  The  short  session  cannot  con- 
tinue beyond  12  m.  March  4  of  the  ensuing  year. 

Under  the  present  system,  each  Congress  holds  one  session  after 
the  members  of  the  House  of  Representatives  for  the  ensuing  Con- 


ELECTIONS  OF  CONGRESSMEN.  169 

gress  have  been  elected.  The  constitutional  interval  between  the 
election  of  a  Representative  and  the  beginning  of  his  term  is  from 
the  Tuesday  next  after  the  first  Monday  in  November  until  the  4th 
of  March  following,  while  the  practical  interval  extends  to  the  first 
Monday  in  December  next  ensuing.  It  often  happens  that  a  House 
of  Representatives,  at  its  last  session,  does  not  represent  the  political 
opinion  and  feeling  of  the  country  as  expressed  at  the  election  held 
the  previous  November,  while  the  new  House,  which  does  represent 
them,  carmot,  save  in  case  of  a  called  session,  act  for  more  than  a 
year.  It  has  therefore  been  suggested,  with  much  apparent  reason, 
that  the  Constitution  should  be  so  changed  as  to  make  the  election . 
of  a  Representative  and  the  beginning  of  his  term  coincide,  and  to 
bring  on  a  session  of  Congress  soon  thereafter. 

Note. — By  an  act  approved  February  28,  1871,  the  national  government 
Tindertook  to  extend  its  authority  in  a  general  way  over  the  elections  of  Rep- 
resentatives. It  was  made  the  duty  of  the  several  Circuit  Judges  to  appoint  in 
each  judicial  district  in  their  circuits  a  chief  supervisor  of  elections;  also,  under 
certain  conditions,  to  appoint  supervisors  of  elections  for  the  several  election 
districts  and  precincts  within  the  districts.  These  supervisors  were  required  to 
guard  and  scrutinize  the  registration  lists  of  voters,  to  attend  the  elections,  to 
challenge  voters  of  doubtful  qualification  for  the  franchise,  to  inspect,  scrutinize, 
and  count  the  ballots,  and  to  make  returns  of  certificates  and  returns  to  the 
chief  supervisor  of  the  judicial  district.  The  same  act  also  required  the  mar- 
shal of  the  district  and  his  general  deputies  to  preserve  order  at  the  registra- 
tion and  voting  places,  and  to  support  and  protect  supervisors  in  the  discharge 
of  their  duties;  he  was  also  required  in  certain  places,  under  certain  conditions, 
to  appoint  special  deputies  for  the  express  purpose  of  performing  these  duties. 
An  attempt  made  in  the  Fifty-first  Congress  to  carry  national  regulation  of 
elections  still  further  failed;  while  the  Fifty-third  Congress,  at  its  first  regular 
session,  passed  a  bill,  which  President  Cleveland  approved,  that  repealed  all 
statutes  and  all  parts  of  statutes  then  in  force  relating  to  supervisors  of  elec- 
tions and  special  deputy  marshals  for  election  purposes. 


CHAPTER  XXI. 
IMPEACHMENTS. 

Articu:  I.,  Section  2,  Clause  3. —  The  House  of  Representatives 
.    .    .    shall  have  the  sole  power  of  impeachment. 

Article  I.,  Section  3,  Clause  6. —  The  Senate  shall  have  the  sole 
power  to  try  all  impeachments.  When  sitting  for  that  purpose,  they 
shall  be  on  oath  or  affirmation.  When  the  President  of  the  United 
States  is  tried,  the  Chief  Justice  shall  preside:  and  no  person  shall 
be  convicted  without  the  concurrence  of  two  thirds  of  the  members 
present. 

Article  I.,  Section  3,  Clause  7. —  Judgment  in  cases  of  impeach- 
ment shall  not  extend  further  than  to  removal  from  office,  and  dis- 
qualification to  hold  and  enjoy  any  office  of  honor,  trust,  or  profit 
under  the  United  States ;  but  the  party  convicted  shall  nevertheless 
be  liable  and  subject  to  indictment,  trial,  judgment,  and  punishment 
according  to  law. 

Article  II.,  Section  4. — The  President,  Vice  President,  and  all 
civil  officers  of  the  United  States  shall  be  removed  from  office  on 
impeachment  for,  and  conviction  of,  treason,  bribery,  or  other  high 
crimes  and  misdemeanors. 

Article  II.,  Section  2,  Clause  I. — ^The  President  .  .  .  shall 
have  power  to  grant  reprieves  and  pardons  for  offenses  against  the 
United  States,  except  in  cases  of  impeachment. 

302.  An  Impeachment  Defined. — An  impeachment, 
under  the  Constitution,  is  a  solemn  declaration  laid  before 
the  Senate,  that,  in  the  view  of  the  House  of  Representa- 
tives, the  person  impeached  is  guilty  of  high  crimes  and 
misdemeanors  committed  in  office  and  should  be  tried  there- 
for. It  is  similar  to  the  indictment  o^  a  grand  jury.  It 
determines  nothing  as  to  the  guilt  or  innocence  of  the  per- 
son against  whom  the  charge  is  made.  The  House  of  Rep- 
resentatives, in  1867,  impeached  President  Johnson,  but  the 
Senate  acquitted  him. 

303.  Steps  to  be  Taken. — The  following  are  the  princi- 
pal steps  taken  in  an  impeachment  case,  as  laid  down  in 
the  Manual  of  the  House  of  Representatives:     The  House 

(170) 


IMPEACHMENTS.  171 

having  resolved  that  Mr. be  impeached,  sends  a  com- 
mittee of  its  members  to  the  Senate  to  impeach  him  in  the 
name  of  the  House  of  Representatives  and  of  all  the  people 
of  the  United  States,  of  high  crimes,  and  misdemeanors 
in  office,  to  acquaint  the  Senate  that  the  House  will  in  due 
time  exhibit  articles  of  impeachment  against  him  and  make 
good  the  same,  and  to  demand  that  the  Senate  take  order 

for  the  appearance  of  the  said  Mr.  to  answer  to  the 

impeachment.  The  House  receives  from  the  Senate  a  mes- 
sage that  it  will  take  the  order  demanded,  and  will  give  the 
House  due  notice.  The  House  adopts  articles  of  impeach- 
ment, appoints  by  ballot  five  managers  to  conduct  the  trial 
on  the  part  of  the  House,  and  orders  the  managers  to  lay 
before  the  Senate  the  articles  agreed  upon,  which  is  duly 
done.     The  Senate  now  notifies  the  House  that  it  has  issued 

the  proper  notice  to  Mr. ,  with  an  order  to  file  his  reply 

within  a  given  time,  and  on  the  day  appointed  it  gives  fur- 
ther notice  that  it  is  ready  to  proceed  with  the  case.  The 
House  now  proceeds  to  the  Senate  Chamber  to  witness  the 
opening  of  the  trial,  and  then  returns  to  its  own  chamber  and 
adopts  a  replication  to  the  answer  and  plea  made  by  Mr. 

.     The  preliminaries  over,  the  trial  proceeds  day  by 

day,  the  House  at  first  attending  as  a  committee  of  the 
whole,  but  afterwards  leaving  the  case  wholly  to  the  five 
managers. 

304.  Trial  Court. — In  the  trial  the  Senate  sits  as  a  court 
of  justice ;  and  to  remind  him  that  he  is  not  now  a  legis- 
lator, but  a  judge,  each  Senator  is  required  to  take  an  oath 
that  he  will  do  impartial  justice  according  to  the  Constitu- 
tion and  laws.  The  Vice  President  or  president  pro  tem- 
pore of  the  Senate  presides  in  ordinary  cases,  but  the  Chief 
Justice  presides  in  the  case  of  an  impeachment  of  the  Presi- 
dent of  the  United  States.  The  reason  for  this  special  rule 
is  that  the  Vice  President  is  personally  interested  in  the  issue, 
as  he  would  succeed  to  the  presidency  in  case  the  President 
were  found  guilty. 

305.  Mode  of  Trial. — The  trial  is  conducted  according 


172  THE  AMERICAN  GOVERNMENT. 

to  the  rules  observed  in  criminal  trials  in  courts  of  justice. 
The  House  managers  maintain  their  cause;  the  accused,  in 
person  or  by  counsel,  makes  his  defense ;  witnesses  are  sworn 
and  examined,  and  other  competent  evidence  is  presented 
pro  and  con;  the  managers  and  counsel  submit  their  argu- 
ments. At  the  close  of  the  trial  the  doors  of  the  chamber 
are  shut  and  the  Senate  proceeds  to  consider  the  case. 

The  voting  is  conducted  according  to  rule  XIV.  of  the  Senate 
Rules  for  Impeachment,  viz. : 

"  On  the  final  question  whether  the  impeachment  is  sustained, 
the  yeas  and  nays  shall  be  taken  on  each  article  of  impeachment 
separately,  and  if  the  impeachment  shall  not,  upon  any  of  the 
articles  presented,  be  sustained  by  the  votes  of  two  thirds  of  the 
members  present,  a  judgment  of  acquittal  shall  be  entered;  but  if 
the  person  accused  in  such  articles  of  impeachment  shall  be  con- 
victed upon  any  of  such  articles  by  the  votes  of  two  thirds  of  the 
members  present,  the  Senate  shall  proceed  to  pronounce  judgment, 
and  a  certified  copy  of  said  judgment  shall  be  deposited  in  the  office 
of  the  Secretary  of  State." 

306.  Judgment. — One  of  the  above  quoted  clauses  says 
the  judgment  pronounced  upon  the  accused,  if  he  be  found 
guilty,  shall  not  extend  further  than  his  removal  from  office 
and  disqualification  to  hold  office  under  the  United  States; 
another  says  it  must  extend  to  his  removal.  It  is  for  the 
Senate  to  decide  whether  the  disqualification  to  hold  office 
in  the  future  shall  be  pronounced  or  not,  but  that  is  the 
limit  of  its  discretion.  At  the  same  time  the  person  con- 
victed may  be  proceeded  against  in  the  courts,  just  as 
though  he  had  not  been  punished  by  impeachment,  pro- 
vided he  has  been  guilty  of  an  offense  punishable  by  law. 
The  reason  for  denying  the  President  power  to  grant  re- 
prieves and  pardons  in  these  cases  is  that  such  a  power 
would  be  peculiarly  liable  to  abuse.  The  question  whether 
an  officer  may  be  suspended  from  the  exercise  of  his  office 
while  an  impeachment  against  him  is  pending,  has  been 
often  asked  but  never  answered  by  any  competent  tribunal. 

307.  Limitation  of  the  Power. — The  fourth  of  the 
clauses  quoted  limits  impeachment  to  the  President,  Vice 


IMPEACHMENTS.  173 

President,  and  civil  officers  of  the  United  States.  Who  are, 
and  who  are  not,  civil  officers,  a're  questions  that  have  been 
much  disputed.  In  1797  the  House  of  Representatives 
impeached  William  Blount,  a  Senator  from  Tennessee;  the 
Senate  decided  by  a  vote  of  14  to  11  that  Senators  are  not 
civil  officers  in  the  sense  of  the  Constitution,  and  dismissed 
the  case  without  trial,  although  it  expelled  Blount  under 
clause  2,  section  5,  of  Article  I.  If  Senators  are  not  civil 
officers,  neither  are  Representatives.  The  result  is  that, 
according  to  this  view,  impeachment  is  practically  limited  to 
the  executive  and  judicial  departments  of  the  government. 
Soldiers  and  sailors  are  tried  and  punished  for  offenses 
in  connection  with  their  service  by  military  and  naval  courts. 

The  action  of  the  Senate  in  1797  rests  on  two  or  three  clauses  of 
the  Constitution  that  appear  to  exclude  Senators  and  Representatives 
from  the  category  of  officers  of  the  United  States.  Thus,  clause  2, 
section  6,  of  Article  I.  says,  " .  .  .  no  person  holding  any  office 
under  the  United  States  shall  be  a  member  of  either  House  during 
his  continuance  in  office,"  and  "  no  Senator  or  Representative  shall, 
during  the  time  for  which  he  was  elected,  be  appointed  to  any  civil 
office  "  etc. 

308.  Grounds  of  Impeachment.— Section  4,  Article  II., 
states  the  grounds  of  impeachment,  but  not  with  such  clear- 
ness as-  to  prevent  some  uncertainty.  Treason  and  bribery 
are  perfectly  well  understood.  Not  so  the  "  other  high 
crimes  and  misdemeanors "  of  the  section.  It  has  been 
maintained,  for  instance,  that  the  impeachment  and  convic- 
tion of  a  civil  officer  is  constitutional  only  when  he  is 
guilty  of  an  offense  punishable  by  an  act  of  Congress.  This 
is  a  narrow  view ;  the  proper  one  is  that  such  an  officer  may 
be  impeached  for  offenses  relating  to  his  official  conduct  that 
are  not  defined,  and  that  cannot  be  defined,  in  the  law  at  all, 
since  they  cannot  be  anticipated. 

Impeachment  is  an  extraordinary  remedy  for  extraordinary  evils. 
Judge  Pickering  was  impeached  and  found  guilty  of  drunkenness 
and  profanity  on  the  bench,  neither  of  which  offenses  is  prohibited 
by  law ;  and  nearly  all  the  offenses  charged  against  the  persons 
whom  the  House  of  Representatives  has  impeached  were  non-indict- 
able  ones.    In   fact,   the   great   reason   for   giving   the   House  and 


174  THE  AMERICAN  GOVERNMENT. 

Senate  rather  than  the  courts  jurisdiction  in  impeachment  cases  is 
that  the  oflFenses  are  often  official  and  not  covered  by  the  statutes. 

309.  Two-Thirds  Vote.— Obviously,  the  votes  of  all  the 
Senators  voting  should  not,  as  in  a  jury,  be  required  to 
convict;  nor  should  a  mere  majority  be  sufficient. 

The  reasons  for  a  two-thirds  vote  are  stated  thus  cogently  by 
Judge  Cooley :  "  The  danger  that  Senators,  chosen  as  representa- 
tives of  political  parties,  will  be  swayed,  consciously  or  uncon- 
sciously, by  considerations  that  should  not  influence  them,  is  much 
greater  on  the  trial  of  a  political  officer  from  whose  removal  or  re- 
tention party  advantages  might  be  expected,  ihan  on  that  of  a  judge. 
This  was  forcibly  illustrated  by  the  case  of  President  Johnson,  in 
which,  with  a  few  exceptions.  Senators  divided  on  the  question  of 
guilt  strictly  according  to  their  political  affinities.  ...  It  would 
be  a  calamity  of  the  highest  moment  if  the  precedent  should  be  set  of 
the  conviction  and  removal  of  the  President  on  a  partisan  vote,  and 
on  grounds  not  sanctioned  by  the  sober  sense  and  mature  reflection 
of  the  people."  * 

310.  Impeachment  Cases. — There  have  been  eight  impeachment 
cases  under  the  Constitution,  with  seven  trials  and  two  convictions. 

William  Blount,  Senator  from  Tennessee;  1797,  1798;  five  articles 
relating  to  violation  of  the  neutrality  laws ;  no  trial. — ^John  Picker- 
ing, District  Judge  for  New  Hampshire;  1803,  1804;  four  articles 
charging  drunkenness  and  profanity  on  the  bench,  and  imprison- 
ment of  an  attorney  for  contempt  of  court ;  tried,  found  guilty, 
removed  from  office,  but  not  pronounced  disqualified  to  hold  office. 
—  Samuel  Chase,  Justice  of  the  Supreme  Court ;  1804,  1805 ;  eight 
articles  charging  arbitrary  and  oppressive  conduct  on  the  bench,  and 
improper  criticisms  of  the  national  administration ;  tried  and  acquit- 
ted.—  James  Peck,  District  Judge  for  Missouri ;  1829,  1830 ;  one  arti- 
cle alleging  arbitrary  conduct  on  the  bench  in  punishing  an  attorney ; 
tried  and  acquitted. —  W.  W.  Humphreys,  District  Judge  for  Ten- 
nessee; 1862;  seven  articles  charging  disloyalty  in  a  public  speech 
and  in  accepting  a  judgeship  under  the  Southern  Confederacy;  tried, 
convicted,  and  removed. —  Andrew  Johnson,  President  of  the  United 
States ;  1867 ;  eleven .  articles  charging  repeated  violations  of  the 
Tenure  of  Office  Act,  and  the  utterance  of  indecent  and  unbecoming 
threats  and  harangues  about  Congress,  and  the  declaration  that  the 
Thirty-ninth  Congress  was  no  constitutional  Congress ;  tried  and 
acquitted,  votes  being  taken  on  but  three  articles. —  W.  W.  Belknap, 
Secretary  of  War ;  1876 ;  five  articles  charging  malfeasance  in  accept- 

*  Story,  Commentaries  (4th  edition),  780,  Note. 


IMPEACHMENTS.  1 75 

ing  bribes  for  appointing  and  retaining  in  office  a  post  trader  on  the 
frontier;  tried  and  acquitted. —  Charles  Swayne,  District  Judge  for 
Northern  Florida;  1905;  charged  with  financial  irregularities,  failure 
to  reside  in  his  district,  and  abuse  of  judicial  power;  tried  and 
acquitted. 

311.  The  Blount  and  Belknap  Cases. — Two  of  these  cases  pre- 
sented a  perplexing  question.  The  Senate  had  expelled  Blount  be- 
fore the  case  came  on  for  trial,  while  Belknap  had  resigned  and 
President  Grant  had  accepted  his  resignation  immediately  on  the 
discovery  of  his  crime  and  before  the  House  began  proceedings 
against  him.  The  question  in  either  case  was  whether  a  man  no 
longer  in  the  service  of  the  government  was  amenable  to  conviction 
on  impeachment.  The  Senate  declined  to  try  Blount  on  the  ground 
that  he  was  not  a  civil  officer,  but  did  not  pass  on  the  other  point. 
In  the  other  case,  the  Senate  decided,  37  votes  to  29,  that  the  accused 
was  still  subject  to  trial,  although  now  a  private  citizen.  The  final 
vote  stood,  guilty  ZT,  not  guilty  25.  There  was  no  doubt  that  Bel- 
knap had  been  guilty  of  the  offenses  charged,  but  the  minority  voted 
No  on  the  ground  that  the  Senate  had  no  j  urisdiction  in  such  a  case. 

Note. — The  process  called  impeachment  originated  in  England,  where  the 
first  case  bears  the  date  of  1376.  There  it  is  a  much  more  sweeping  process 
than  in  the  United  States.  Not  officers  alone,  but  all  subjects  of  the  crown 
may  be  impeached.  The  king,  however,  is  not  impeachable,  the  theory  being 
that  he  can  do  no  wrong,  and  that  responsibility  for  his  acts  attaches  only  to 
his  ministers.  Punishment  may  extend  to  fine,  imprisonment,  banishment,  and 
even  death,  as  well  as  to  removal  from  office.  The  use  of  the  power  in  many 
English  cases  now  seems  severe,  and  in  some  absurd.  There  has  been  no  case 
of  impeachment  in  England  since  1804,  and  arguments  have  been  adduced 
showing  that  its  exercise  is  now  uncalled  for.  But  in  the  United  States,  where 
legislatures  have  so  much  less  control  over  executives  and  courts  of  law  than 
in  England,  the  case  is  otherwise.     Sir  T.  £.  May  thus  speaks  for  England: 

"  Impeachment  by  the  Commons  for  high  crimes  and  misdemeanors  beyond 
the  reach  of  the  law,  or  which  no  other  authority  in  the  state  will  prosecute,  is 
a  safeguard  of  public  liberty  well  worthy  of  a  free  country,  and  of  so  noble 
an  institution  as  a  free  Parliament;  but  happily  in  modem  times  this  extraor- 
dinary judicature  is  rarely  called  into  activity.  The  times  in  which  its  exer- 
cise was  needed  were  those  in  which  the  people  were  jealous  of  the  crown; 
when  the  Parliament  had  less  control  over  prerogative;  when  courts  of  justice 
were  impure;  and  when,  instead  of  vindicating  the  law,  the  crown  and  its  offi- 
cers resisted  its  execution  and  screened  political  offenders  from  justice;  but  the 
limitations  of  prerogative,  the  immediate  responsibility  of  the  ministers  of  the 
crown  to  Parliament,  the  vigilance  and  activity  of  that  body  in  scrutinizing  the 
actions  of  public  men,  the  settled  administration  of  the  law,  and  the  direct  in- 
fluence of  Parliament  over  courts  of  justice,  which  are  at  the  same  time  inde- 
pendent of  the  crown,  have  prevented  the  consummation  of  those  crimes  which 
impeachments  were  designed  to  punish.  The  crown  is  intrusted  by  the  consti- 
tution with  the  prosecution  of  all  offenses;  there  are  few  which  the  law  cannot 
punish;  and  if  the  executive  officers  of  the  crown  be  negligent  or  corrupt,  they 
are  directly  amenable  to  public  opinion,  and  to  the  censure  of  Parliament."— 
Parliamentary  Practice,  p.  733. 


CHAPTER  XXII. 

THE  POWERS  OF  THE  SEPARATE  HOUSES. 

Article  I. 

Section  5,  Clause  i. — Each  house  shall  be  the  judge  of  the  elec- 
tions, returns,  and  qualifications  of  its  own  members,  and  a  majority 
of  each  shall  constitute  a  quorum  to  do  business ;  but  a  smaller  num- 
ber may  adjourn  from  day  to  day,  and  may  be  authorized  to  compel 
the  attendance  of  absent  members,  in  such  manner,  and  under  such 
penalties  as  each  house  may  provide. 

312.  The  Houses  Judges,  etc. — A  house  of  legislation, 
to  be  a  really  independent  body,  must  know  that  the  persons 
claiming  membership  have  been  duly  elected  and  that  they 
are  duly  qualified.  Hence  it  must  be  the  judge  of  those 
matters.  Both  houses  have  rejected  men  duly  elected 
because  they  were  disqualified,  and  contested  elections  have 
been  numerous,  particularly  in  the  House  of  Representatives. 
For  example,  at  the  opening  of  the  Fifty-first  Congress  there 
were  seventeen  such  cases  in  that  body. 

313.  Contests  in  the  House  of  Representatives. — ^The  State 
authorities  conduct  all  elections  of  Representatives,  under  the  laws 
of  the  State  and  of  Congress.  They  canvass  the  votes  and  decide 
what  persons  are  eiected.  The  governor  gives  the  Representative 
his  certificate  of  election.  The  clerk  of  the  next  preceding  House 
makes  a  roll  of  the  members-elect  before  the  House  meets,  placing 
thereon  only  the  names  of  those  persons  whose  certificates  show  that 
they  have  been  regularly  elected.  Any  person  whose  name  is  on  this 
roll  may  take  part  in  organizing  the  House ;  but  it  is  still  open  to  the 
House  to  inquire  into  his  right  to  a  seat.  Ha  contestant  appears  to 
deny  the  right  of  such  person,  all  the  papers  relating  to  the  case 
required  by  law  are  referred  by  the  clerk  to  the  House,  and  then  by 
the  House  to  a  Committee  on  Elections.  These  papers  are  some- 
times very  voluminous,  as  the  law  gives  detailed  directions  for  con- 
ducting such  contests :  the  serving  of  notice  by  the  contestant  upon 

(176) 


THE  POWERS  OF  THE  SEPARATE  HOUSES.       177 

the  person  declared  elected,  and  the  answer  of  such  person ;  the  tak- 
ing of  depositions  relating  to  irregularities  in  elections  at  any  pre- 
cinct, and  forwarding  them  to  the  seat  of  government.  The  expense 
of  taking  testimony  is  paid  out  of  the  contingent  fund  of  the  House, 
except  the  personal  expenses  of  the  parties.  The  Committee  on 
Elections  investigates  the  case,  not  taking  new  testimony,  however, 
and  reports  its  conclusions  to  the  House.  The  House  decides  that 
one,  or  the  other,  or  neither  of  the  parties  is  elected;  in  the  latter 
case  declaring  the  seat  vacant.  From  this  decision  there  is  no  ap- 
peal. If  a  vacancy  is  declared,  a  new  election  must  be  held  under 
clause  4,  section  2  of  this  article. 

As  neither  the  law  nor  the  rules  of  the  Senate  make  any  provision 
for  contested  senatorships,  contests  there  lie  within  much  narrower 
compass.  The  question  is  not  commonly  between  two  men ;  it  is 
generally  whether  the  single  claimant  has  been  duly  elected,  and 
this  is  an  inquiry  into  forms  and  records. 

314.  Quorums. — Forty  members  make  a  quorum  in  the 
House  of  Commons,  although  that  body  consists  of  670 
members.  While  the  Constitution  requires  a  majority  in 
each  house  of  Congress,  it  gives  a  smaller  number  power  to 
adjourn  from  day  to  day,  and  to  compel  the  attendance  of 
absent  members.  In  the  House  of  Representatives,  such 
number  is  fixed  at  fifteen ;  in  the  Senate,  no  particular  num- 
ber is  named. 

315.  Counting  a  Quorum. — The  practice  having  grown  up  in 
the  House  of  Representatives  of  members  abstaining  from  voting 
on  certain  measures,  hoping  thus  to  defeat,  or  at  least  to  delay  them, 
by  making  the  roll-call  show  less  than  a  quorum,  that  body  adopted 
at  the  first  session  of  the  Fifty-first  Congress,  after  a  severe  party 
struggle,  the  following  rule :  "  On  the  demand  o*  any  member,  or 
at  the  suggestion  of  the  Speaker,  the  names  of  members  sufficient  to 
make  a  quorum  in  the  hall  of  the  House  who  do  not  vote,  shall  be 
noted  by  the  clerk  and  recorded  in  the  Journal,  and  reported  to  the 
Speaker  with  the  names  of  the  members  voting,  and  be  counted  and 
announced  in  determining  the  presence  of  a  quorum  to  do  business." 
The  Fifty-third  Congress  adopted  a  similar  rule,  but  put  the  count- 
ing of  members  not  voting,  who  were  present,  in  the  hands  of  two 
tellers  named  by  the  Speaker,  one  from  each  side  of  the  pending  ques- 
tion if  practicable,  rather  than  in  the  hands  of  the  Speaker  himself. 

316.  Power  to  Compel  Attendance. — The  power  to 
compel  the  attendance  of  absent  members  is  essential  to  an 


178  THE  AMERICAN  GOVERNMENT. 

efficient  house  of  legislation.  Otherwise  days,  and  even 
weeks,  might  pass  without  its  being  able  to  transact  any  busi- 
ness whatever,  particularly  when  a  majority  is  required  to 
form  a  quorum.  In  one  instance  two  months  elapsed  with- 
out a  quorum  being  present  in  the  Old  Congress,  and  once 
Rhode  Island  broke  the  quorum  by  recalling  her  delegates, 
in  order  to  defeat  legislation  to  which  she  was  opposed. 

317. — A  Call  of  the  House. — Whether  a  quorum  is  present  in  the 
House  of  Representatives,  at  any  time,  is  ascertained  either  by  call- 
ing the  roll  or  by  the  Speaker's  count.  If  a  quorum  is  wanting, 
nothing  can  be  done  but  to  adjourn,  or  to  proceed  to  a  call  of  the 
House.  In  the  latter  case,  the  doors  of  the  chamber  are  closed,  the 
names  of  absent  members  are  called  over,  and  the  ^ergeant-at-arms 
is  furnished  with  a  list  of  all  absentees  for  whom  reasonable  excuses 
are  not  made.  Then  the  sergeant-at-arms  sends  messengers,  with 
warrants  signed  by  the  Speaker  and  clerk,  to  arrest  and  bring  to  the 
House  the  members  whose  names  are  on  the  list.  This  is  taking 
them  into  custody,  from  which  they  must  be  regularly  discharged 
before  they  can  take  their  seats.  On  the  appearance  of  a  quorum,  all 
further  proceedings  under  the  call  of  the  House  are  commonly  dis- 
pensed with,  and  business  goes  on  as  before. 

In  the  Senate  the  procedure  is  less  complicated  5  if  it  appears  on 
the  call  of  the  roll  for  such  purpose  that  there  is  no  quorum,  a 
majority  of  the  Senators  present  may  direct  the  sergeant-at-arms  to 
request,  and  when  necessary  to  compel,  the  attendance  of  the  absent 
Senators.    In  the  interval,  no  business  is  in  order  except  to  adjourn. 

Section  5,  Clause  2. —  Each  house  may  determine  the  rules  of  its 
proceedings,  punish  its  members  for  disorderly  behavior,  and,  with 
the  concurrence  of  two  thirds,  expel  a  member. 

318.  Power  to  Make  Rules,  etc. — That  each  house 
should  have  the  power  to  make  its  own  rules  is  obvious. 
The  Senate  rules  continue  in  force  until  changed;  but  each 
House  of  Representatives,  since  it  is  a  new  body,  makes  its 
own  rules.  It  is  usual  for  a  house  at  first  to  adopt  the  rules 
of  the  last  one,  in  part  or  whole,  until  others  are  adopted. 
Experience  has  shown  what  rules  are  needed,  and  the  house 
rules  change  but  slowly.  Until  the  House  adopts  rules, 
business  proceeds  under  the  common  parliamentary  law. 
Each  house  has  its  own  committee  on  rules. 


THE  POWERS  OF  THE  SEPARATE  HOUSES.       179 

All  rulfes  of  proceeding  in  deliberative  bodies  in  English-speaking 
countries  are  based  on  the  law  of  Parliament.^  This  law  consists 
of  the  customs,  precedents,  and  rules  that  govern  the  transaction  of 
business  in  Parliament,  and  is  the  growth  of  centuries.  Many  of 
these  rules  are  inapplicable  in  the  American  Congress,  while  other 
rules  are  required.  Moreover,  owing  to  the  different  constitution  of 
the  Senate  and  the  House,  the  difference  in  the  size  of  the  two 
bodies,  and  their  partly  different  duties,  they  require  different  rules 
of  proceeding.  Speeches  in  the  Senate  are  not  limited  in  length 
by  any  rule',  but  in  the  House  they  cannot  exceed  an  hour  without 
special  permission.  The  House  rules  authorize  the  previous  ques- 
tion (or  closure),  whereby  debate  can  be  terminated  and  a  vote  on 
the  main  question  be  brought  on ;  but  this  motion  the  Senate  rules 
do  not  permit. 

319.  Punishment  and  Expulsion. — Senators  and  Repre- 
sentatives are  punished  or  expelled  for  conduct  unbecoming 
their  official  character.  For  example,  Jesse  D.  Bright,  Sen- 
ator from  Indiana,  was  expelled  from  the  Senate  in  1862 
for  disloyalty  in  having,  in  a  private  letter,  afterwards  pub- 
lished, recommended  to  Jefferson  Davis,  President  of  the 
Confederate  States,  the  inventor  of  an  improvement  in  fire- 
arms. The  House  also  has  exercised  its  power  to  punish 
and  expel  in  a  number  of  cases,  and  in  1842  it  reprimanded 
Joshua  R.  Giddings,  of  Ohio,  for  introducing  certain  reso- 
lutions in  respect  to  slavery.  While  the  power  of  expulsion 
is  very  properly  conferred  upon  the  houses,  the  rule  requiring 
a  two-thirds  vote  for  that  purpose  is  obviously  a  wise  one. 

Section  5,  Clause  3. — Each  house  shall  keep  a  journal  of  its  pro- 
ceedings, and  from  time  to  time  publish  the  same,  excepting  such 
parts  as  may  in  their  judgment  require  secrecy;  and  the  yeas  and 
nays  of  the  members  of  either  house  on  any  question  shall,  at  the 
desire  of  one  fifth  of  those  present,  be  entered  on  the  Journal. 

320.  Modes  of  Voting. — The  House  of  Representatives 
votes  in  several  different  ways.  The  most  common  way  is 
viva  voce,  the  presiding  officer  deciding  the  vote  by  the 
sound.  If  he  is  in  doubt,  he  asks  the  members  to  rise  while 
he  counts  them.  If  his  decision  is  questioned,  he  appoints 
two  tellers,  or  "  counters,"  who  count  members  as  they  pass 
between  the  tellers,  and  announce  to  him  the  result,  which 


l8o  THE  AMERICAN  GOVERNMENT. 

he  then  announces  to  the  House.  This  is  called  a  division. 
When  the  vote  m  by  yeas  and  nays,  the  clerk  calls  the  roll, 
and  records  after  each  man's  name  "  yea,"  "  nay,"  "absent  " 
or  "  not  voting."  The  object  of  entering  the  yeas  and  nays 
upon  the  Journal  is  to  inform  the  public  how  their  represent- 
atives vote  on  questions.  As  the  expression  is,  "  it  puts  a 
man  on  the  record,"  which  the  other  methods  of  voting  do 
not  do. 

On  any  important  question,  at  least  if  there  is  a  divided  opinion, 
the  roll  is  pretty  certain  to  be  called ;  and  the  Constitution  expressly 
requires  it  when  a  vetoed  bill  is  put  upon  its  passage.  The  House 
votes  by  ballot  when  it  elects  the  President.  The  rules  of  the  Senate 
recognize  no  vote  but  that  by  yeas  and  nays.  Members  of  the  House 
of  Lords  vote  "  content "  and  "  not  content "  on  the  call  of  the  roll ; 
the  House  of  Commons  divides,  the  members  going  into  the  lobby, 
where  they  are  counted. 

321.  Dilatory  Motions. — Members  who  are  opposed  to  a  pend- 
ing measure  on  which  a  vote  is  about  to  be  taken,  in  order  to  defeat 
it  by  delay,  when  they  cannot  by  voting,  sometimes  make  dilatory 
motions,  as  to  adjourn,  and  call  for  the  yeas  and  nays  on  every  ques- 
tion, with  a  view  of  using  up  the  time  and  forcing  an  adjournment. 
This  is  popularly  called  "  filibustering."  The  Constitution  has  there- 
fore wisely  provided  that  the  demand  for  the  yeas  and  nays  must  be 
supported  by  one  fifth  of  the  members  present.  In  the  Old  Con- 
gress one  member  could  make  this  call. 

Section  5,  Clause  4. —  Neither  house,  during  the  session  of  Con- 
gress, shall,  without  the  consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  place  than  that  in  which  the  two  houses 
shall  be  sitting. 

322.  Adjournment. — This  clause  prevents  those  inter- 
ruptions of  business,  and  that  friction  between  the  houses, 
which  would  ensue  provided  either  house  should  adjourn 
to  such  place  and  for  such  time  as  it  pleased.  The  two 
houses  can,  however,  adjourn  to  another  place  than  the 
seat  of  government;  and  the,  President  is  by  law  author- 
ized, whenever  Congress  is  about  to  convene,  and  he  thinks 
life  or  health  would  be  hazarded  by  meeting  at  the  capital, 
owing  to  contagion  or  other  circumstances,  to  convene  it 
by  proclamation  at  some  other  place. 


THE  POWERS  OF  THE  SEPARATE  HOUSES.       i8l 

323.  Power  to  Punish  for  Contempt. — A  legislative  body  has 
the  right,  and  is  in  duty  bound,  to  conduct  proper  investigations  into 
the  conduct  of  public  affairs.  It  may  call  witnesses  to  its  bar,  or  it 
may  appoint  an  investigating  committee,  giving  to  it  power  to  send 
for  persons  and  papers.  For  many  years  both  houses  of  Congress 
had  been  in  the  habit  of  punishing  witnesses  for  contempt  who 
refused  to  answer  questions  put  to  them  on  such  investigations, 
sometimes  even  sending  them  to  jail.  In  the  celebrated  case  of  Kil- 
bourn  v.  Thompson,^  the  Supreme  Court  held  that  —  although  the 
House  of  Representatives  can  punish  its  own  members  for  disorderly 
conduct,  or  for  failure  to  attend  its  sessions,  can  decide  cases  of  con- 
tested elections,  determine  the  qualifications  of  its  members,  exer- 
cise the  sole  power  of  impeachment  of  officers  of  the  government, 
and  may,  when  the  examination  of  witnesses  is  necessary  to  the  per- 
formance of  these  duties,  fine  or  imprison  a  contumacious  witness  — 
there  is  not  in  the  Constitution  of  the  United  States  any  general 
power  in  either  house  to  punish  for  contempt.  Neither  house  has 
authority  to  extend  such  an  inquiry  into  the  private  affairs  of  the 
citizen.  Kilbourn  had  been  committed  to  jail  by  the  House  of  Rep- 
resentatives for  refusing  to  answer  questions  addressed  to  him  relat- 
ing to  his  private  business.  The  decision  referred  to  was  rendered 
in  habeas  corpus  proceedings  which  gave  him  his  liberty. 

»  103  U.  S.  Reports,  168. 


CHAPTER  XXIII. 

RIGHTS  OF  SENATORS  AND  REPRESENTATIVES. 

Article  I. 

Section  6,  Clause  i. — The  Senators  and  Representatives  shall  re- 
ceive a  compensation  for  their  services,  to  be  ascertained  by  law,  and 
paid  out  of  the  treasury  of  the  United  States.  They  shall  in  all 
cases,  except  treason,  felony,  and  breach  of  the  peace,  be  privileged 
from  arrest  during  their  attendance  at  the  session  of  their  respective 
houses,  and  in  going  to  and  returning  from  the  same;  and  for  any 
speech  or  debate  in  either  house  they  shall  not  be  questioned  in  any 
other  place. 

324.  Members  of  Congress  to  be  Paid. — Members  of 
Parliament  receive  no  compensation  whatever.  The  two 
main  objections  to  such  a  practice  are  that  the  state  has  no 
more  right  to  demand  the  services  of  citizens  than  to  de- 
mand their  property,  without  a  just  compensation,  and  that 
it  tends  to  exclude  poor  men  from  the  legislature.  Hence 
the  Federal  Convention  agreed  that  members  of  Congress 
should  be  paid.  Still,  it  was  urged  by  some  distinguished 
members,  as  General  Pinckney  and  Dr.  Franklin,  that  Sen- 
ators, since  they  would  represent  the  wealth  of  the  country, 
should  be  denied  compensation,  and  such  a  proposition  re- 
ceived the  votes  of  five  States. 

325.  National  Payment. — A  question  much  more 
earnestly  contested  was,  how  payment  should  be  made. 
Some  members  contended  that  the  members  of  the  new  Con- 
gress, like  the  members  of  the  old  one,  and  especially  Sena- 
tors, should  be  paid  by  the  States.  Men  tended  to  divide  on 
this  question  as  they  divided  on  the  question  of  the  nature 
of  the  government  to  be  constituted.  The  arguments  of 
those  who  contended  for  National  payment  were,  that  it 

(182) 


RIGHTS  OF  SENATORS  AND  REPRESENTATIVES.  183 

was  unjust  to  ask  the  States  to  pay  for  services  rendered  to 
the  Nation ;  that  the  several  States  would  compensate  their 
members  at  different  rates,  thus  begetting  jealousy  and 
heartburning;  and  that  some  of  the  States  might  make  the 
pay  so  low  as  to  substitute  for  the  question  "  Who  is  most 
fit  to  be  chosen  ?  "  the  question  "  Who  is  most  willing  to 
serve  ? "  Furthermore,  Mr.  Madison  said  State  payment 
would  prevent  that  very  stability  in  the  government  which 
they  were  seeking  to  gain ;  Senators  would  become  the  mere 
agents  of  State  interests  and  views,  instead  of  being  im- 
partial guardians  of  the  public  good.  Mr.  Hamilton  pre- 
sented the  same  argument  in  the  tersest  form :  "  Those 
who  pay  are  the  masters  of  those  who  are  paid."  These 
arguments  were  decisive  as  to  the  source  of  payment. 

326.  Compensation  Left  to  Congress. — Still  another 
question  was,  whether  the  amount  of  the  compensation 
should  be  fixed  in  the  Constitution  or  be  left  to  Congress. 
On  the  one  hand,  it  was  urged  that  the  pay  would  need 
to  be  changed  from  time  to  time,  and  that  it  would  be  difficult 
or  impossible  to  amend  the  Constitution ;  and  on  the  other 
hand,  that  Congress  would  be  likely  to  abuse  the  power.  It 
was  also  proposed  that  Congress  should  fix  the  compensa- 
tion only  once  in  twelve  years.  The  matter  was  finally  left 
to  the  law-making  power.^ 

327.  Retroactive  Compensationj — Each  Congress  has  absolute 
power  over  its  own  pay,  subject  to  the  President's  veto.  In  every 
case  of  change,  no  matter  when  made,  it  has  had  eflFect  from  the 
beginning  of  the  Congress  making  it.  In  other  words,  every  law  has 
been  retroactive.  The  law  of  March  16,  1816,  reached  back  to  March 
4,  1815;  the  law  of  August  16,  1856,  to  March  4,  1855;  the  law  of 
March  3,  1873,  to  March  4,  1871,  or  two  full  years.  The  laws  of 
1816  and  1873  provoked  severe  criticism  throughout  the  country.  It 
was  the  popular  opinion  that  the  increased  compensation  was  ex- 
cessive ;  and  that  the  retroactive  feature,  although  constitutional,  was 
improper  and  incompatible  with  the  character  of  Congress.    In  both 

*  This  amendment,  which  failed  to  secure  the  requisite  number  of  ratifica- 
tions, was  the  second  one  to  be  proposed  in  1789  :  "  No  law  varying  the  com- 
pensation for  the  services  of  the  Senators  and  Representatives  shall  take  effect 
until  an  election  of  Representatives  shall  have  intervened." 


l84  THE  AMERICAN  GOVERNMENT. 

these  cases  the  ensuing  Congress  hastened  to  repeal  the  obnoxious 
legislation.' 

328.  Exemption  from  Arrest. — The  exemption  of  Sena- 
tors and  Representatives  from  arrest,  to  the  extent  defined, 
is  necessary  to  the  proper  representation  of  the  people  and 
to  the  independence  of  Congress.  If  a  member  of  either 
house  could  be  arrested  and  detained  on  any  charge  for 
which  the  common  citizen  is  liable  to  arrest,  his  constitu- 
ents might  be  deprived  of  his  services.  But  manifestly 
this  exemption  should  not  cover  the  grave  offenses  enu- 
merated :  treason,  bribery,  and  breach  "of  the  peace.  The 
exemption  does  not  extend  to  vacations  between  sessions; 
but  a  member  happening  to  be  in  custody  must  be  dis- 
charged, save  in  the  enumerated  cases,  in  time  to  allow  him 
to  reach  the  capital  at  the  opening  of  a  session. 

329.  Not  to  be  Questioned. — The  clause  "  they  shall 
not  be  questioned  in  any  other  place,"  means  they  shall  not 
be  held  responsible  out  of  Congress  for  words  spoken  in 
Congress.  This  rule  is  as  essential  to  freedom  of  debate 
as  the  former  one  is  to  the  freedom  of  representation.  How- 
ever, just  how  far  this  privilege  extends  is  doubtful.  In 
England  it  does  not  extend  to  a  speech  made  in  Parliament 
and  published  by  its  author,  and  a  member  may  be  prose- 


^  The  following  table  exhibits  the  compensation  of  members  of  Congress  at 
different  times: 

1789-1815 $         6  a  day. 

1815-1817 iiSoo   a  year. 

1817-1855 8  a  day. 

1855-1865 3,000  a  year. 

1865-1871 \ 5,000  a  year. 

1871-1873 7.S00  a  year. 

1873-         5,000  a  year. 

Except  in  the  period  1815-1817,  members  have  always  received  mileage. 
Down  to  1815  it  was  $6  for  every  twenty  miles  of  necessary  travel,  going  to 
and  returning  from  the  capital.  From  1817  to  1865  it  was  $8  for  every  twenty 
miles  of  such  travel.  From  1865  to  1871  it  was  only  twenty  cents  a  mile.  In 
1871-73  it  was  the  actual  expenses  of  travel.  Since  1873  it  has  been  the  same 
as  from  1865  to  1871.  The  Speaker  of  the  House  and  President  pro  temport 
of  the  Senate,  when  there  is  no  Vice  President,  receive  each  $8,000  a  year;  at 
other  times  the  President  pro  tempore  receives  merely  his  Senator's  salary.  For 
the  single  year  1795  Senators  were  paid  one  dollar  per  diem  more  than  Repre- 
sentatives. 


RIGHTS  OF  SENATORS  AND  REPRESENTATIVES.     185 

cuted  for  libelous  matter  contained  in  such  speech.  Judge 
Cooley  thinks  that,  in  this  country,  where  all  debates  in 
Congress  are  published  by  law,  the  privilege  must  also 
cover  the  publication.^  The  rule  is  confined  strictly  to 
what  is  said  in  the  house  or  in  committee,  in  the  discharge 
of  legislative  duty ;  the  words  "  speech  or  debate  "  cover 
whatever  is  said  or  done  in  the  transaction  of  public  busi- 
ness. 

Section  6,  Clause  2. — No  Senator  or  Representative  shall,  during 
the  time  for  which  he  was  elected,  be  appointed  to  any  civil  office 
under  the  authority  of  the  United  States  which  shall  have  been 
created,  or  the  emoluments  whereof  shall  have  been  increased,  during 
such  time,  and  no  person  holding  any  office  under  the  United  States 
shall  be  a  member  of  either  house  during  his  continuance  in  office. 

330.  Reason  of  the  Rule. — The  President  is  often  inter- 
ested in  seeing  certain  measures  become  laws;  and  if  he 
had  the  power  to  make  such  appointments  as  are  here 
forbidden,  he  might  make  them,  or  promise  to  make  them, 
for  the  purpose  of  inducing  members  to  vote  for  such  meas- 
ures. Further,  he  might  aid  in  creating  new  offices,  or  in 
increasing  the  salaries  of  old  ones,  for  the  sake  of  corrupting 
members  with  them.  The  clause  tends  to  prevent  bargains 
and  understandings  between  the  executive  and  members  of 
Congress,  and  so  to  keep  the  two  branches  practically  sepa- 
rate and  distinct.  At  the  same  time,  a  Senator  or  Repre- 
sentative may,  immediately  on  the  expiration  of  the  term 
for  which  he  was  elected,  receive  such  an  appointment; 
or  he  may,  while  serving,  be  appointed  to  an  office  created 
before  his  election,  if  he  resigns  his  seat. 

Note. — What  is  sometimes  called  Cabinet  government  prevails  in  England 
and  in  some  other  countries.  The  leading  members  of  the  English  Ministry 
sit  in  one  or  the  other  of  the  houses  of  Parliament.  The  premier  is  either  a 
prominent  Lord  or  a  prominent  Commoner,  and  for  the  time  the  leader  of  his 
political  party.  The  legislative  and  executive  branches  are  intimately  con- 
nected; the  Ministry  takes  the  initiative  in  the  most  important  legislation,  and 
is  for  the  time  clothed  with,  and  is  responsible  for,  the  exercise  of  the  powers 
of  the  crown.  The  Ministry  is  popularly  called  the  Government,  and  also  the 
Administration.     No  Ministry  can  stand  long  in  the  face  of  a  hostile  majority 

^  Constitutional  Limitations,  p.  594. 


l86  THE  AMERICAN  GOVERNMENT. 

in  the  House  of  Commons.  Indeed,  the  Ministry  has  been  called,  not  unaptly, 
a  committee  of  that  house.  This  system,  which  has  grown  up  since  the  time  of 
Queen  Anne,  is  essential  to  the  very  existence  of  government  as  now  carried 
on  in  the  United  Kingdom.  It  has  been  proposed  to  admit  the  heads  of  our 
executive  departments  to  the  floors  of  Congress  for  the  purpose  of  discussion 
when  measures  relating  to  their  own  departments  are  under  debate.  Bills  or 
resolutions  involving  that  plan  have  been  before  both  the  Senate  and  the  House 
of  Representatives  at  different  times,  but  no  action  has  been  taken  in  either 
body.  Neither  has  the  proposition  ever  received  the  public  approval  nor  at- 
tracted much  public  notice. — Bagehot,  The  English  Constitution;  Wilson,  Con- 
gressional Government ;  Fiske,  The  Critical  Period  in  American  History;  Bryce, 
American  Commonwealth,  Chaps.  IX. -XVI. ;  article  on  "Ministry,"  in  Lalor'» 
Cyclopedia.  See  also  a  speech  by  President  Garfield,  "  Cabinet  Officers  in  Con- 
gress," Works,  Vol.  I.,  p.  6i. 


CHAPTER  XXIV. 

ENACTING  LAWS. 

Article  i. 

Section  7,  Clause  J. — All  bills  for  raising  revenue  shall  originate 
in  the  House  of  Representatives;  but  the  Senate  may  propose  or 
concur  with  amendments  as  on  other  bills. 

331.  Controversy  over  the  Clause. — Perhaps  no  clause 
of  the  Constitution  was  more  seriously  contested  than  this 
one.  At  first  the  Convention  gave  the  exclusive  power  of 
originating  revenue  bills  to  the  House  of  Representatives 
as  a  compensation  to  the  large  States  for  conceding  equal 
representation  in  the  Senate  to  the  small  ones.  Then  the 
clause  was  thrown  out,  "  thereby  nearly  unhinging  the 
whole  plan,"  as  one  of  the  members  put  it.  Later  it  was 
restored  as  a  concession  to  the  large  States  for  yielding 
to  the  Senate  the  right  to  ratify  treaties  and  the  power  to 
try  impeachments.-  Still,  one  hundred  years  have  not  settled 
the  extent  of  the  right  conceded  to  the  House. 

332.  Bills  for  Raising  Revenue. — What  are  bills  for 
raising  revenue  in  the  sense  of  the  Constitution?  It  is 
clear  that  the  language  does  not  include  appropriation  bills 
and  that  it  is  limited  to  taxation.  But  does  it  include  bills 
to  diminish  or  repeal  taxes,  as  well  as  bills  to  increase  or 
create  them?  On  the  one  hand,  it  is  contended  that  a  bill 
to  repeal  or  reduce  taxes,  is  not  a  bill  to  raise  revenue.  On 
the  other  hand,  it  is  replied  that  repealing  or  reducing  taxes 
cannot  be  separated  from  levying  taxes,  since  the  abolition 
or  repeal  of  one  tax  may  render  the  increase  or  creation  of 
another  one  necessary,  or  even  demand  the  recasting  of  a 
whole  revenue  system.  These  may  be  called  the  Senate 
view  and  the  House  view  respectively,  and  each  body  main- 
tains that  history  is  on  its  side. 

(187) 


l88  THE  AMERICAN  GOVERNMENT. 

333.  The  Origination  of  Money  Bills. — The  House  has, 
at  different  times,  returned  to  the  Senate,  or  refused  to 
consider,  bills  that  the  Senate  had  originated,  on  the  ground 
that  they  were  infractions  of  this  clause.  In  1871  the  Sen- 
ate passed  a  bill  repealing  an  act  extending  the  income 
tax,  which  the  House  returned  as  such  infraction.  Confer- 
ence committees  were  appointed  to  adjust  the  difference,  but 
the  committees  could  not  agree.  The  House  commit- 
tee maintained  that  the  House  has  the  right  to  originate 
all  bills  relating  directly  to  taxation,  including  bills  impos- 
ing or  remitting  taxes ;  the  Senate  committee  maintained 
that  the  Senate  may  originate  bills  repealing  laws  or  por- 
tions of  laws  imposing  taxes,  even  if  the  repeal  render 
necessary  the  imposition  of  other  taxes.  In  1872  the  Sen- 
ate substituted  for  a  House  bill  to  repeal  existing  taxes  on 
tea  and  coffee,  a  bill  containing  a  general  revision  of  the 
laws  imposing  customs  duties  and  internal  taxes.  The 
House  laid  it  on  the  table.  The  Senate  adopted  a  report 
declaring,  in  effect,  that  it  had  no  right  to  engraft  on  this 
particular  House  bill  the  substitute  that  it  had  adopted, 
but  the  House  took  no  further  notice  of  the  matter.  Again, 
in  the  session  of  1888-89,  the  House  passed  a  bill  to  reduce 
taxation  and  simplify  the  revenue  collection  laws;  the  Sen- 
ate, under  the  form  of  an  amendment,  substituted  a  bill 
revising  in  a  general  way  customs  duties  and  internal 
taxes ;  the  House  Committee  on  Ways  and  Means  reported 
a  resolution  declaring  this  unconstitutional,  but  the  House 
never  acted  on  the  resolution. ' 

While  appropriation  bills  are  not  bills  for  raising  revenue,  still  the 
practice  has  been  for  the  House  to  originate  them.  The  House  has 
commonly  laid  on  the  table  such  bills  coming  from  the  Senate. 
President  Garfield  said  in  1871 :  "  Up  to  this  time  no  general  appro- 
priation bill  which  originated  in  the  Senate  ever  became  a  law."  * 
The  practice  still  is  for  the  House  to  originate  the  general  appro- 
priation bills,  but  less  stress  is  laid  upon  the  privilege  than  for- 

»  Speech  in    H.  R.,  "  The  Right  to  Originate  Money  Bills,"  Works,  VoL  I., 
p.  674. 


ENACTING  LAWS.  189 

merly.    Each  house  has  a  Committee  on  Appropriations,  but  only 
the  House  of  Representatives  has  a  Committee  on  Ways  and  Means. 

334.  Reason  of  the  Rule. — When  it  was  determined  that 
representation  in  the  Senate  should  be  equal,  and  in  the 
House  according  to  numbers,  the  large  States  insisted  upon 
inserting  a  rule  in  regard  to  money  bills  in  the  Constitution. 
In  no  other  way,  they  said,  could  their  property  be  protected 
against  unfair  taxation.  The  value  of  this  concession  was 
greatly  over  estimated  by  the  large  States,  because  of  a  mis- 
taken belief  that  the  American  Senate  and  House  of  Repre- 
sentatives stand  in  the  same  relation  to  the  American  people 
that  the  House  of  Lords  and  House  of  Commons  stand  to 
the  English  people.^ 

Section  7,  Clause  2. —  Every  bill  which  shall  have  passed  the 
House  of  Representatives  and  the  Senate,  shall,  before  it  become  a 
law,  be  presented  to  the  President  of  the  United  States ;  if  he  ap- 
prove he  shall  sign  it,  but  if  not  he  shall  return  it,  with  his  objec- 
tions, to  that  house  in  which  it  shall  have  originated,  who  shall  enter 
the  objections  at  large  on  their  Journal,  and  proceed  to  reconsider 
it.  If,  after  such  reconsideration,  two  thirds  of  that  house  shall 
agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the  objections, 
to  the  other  house,  by  which  it  shall  likewise  be  reconsidered,  and  if 
approved  by  two  thirds  of  that  house  it  shall  become  a  law.  But  in 
all  such  cases  the  votes  of  both  houses  shall  be  determined  by  yeas 
and  nays,  and  the  names  of  the  persons  voting  for  and  against  the 
bill  shall  be  entered  on  the  Journal  of  each  house  respectively.  If 
any  bill  shall  not  be  returned  by  the  President  within  ten  days  (Sun- 
days excepted)  after  it  shall  have  been  presented  to  him,  the  same 
shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless  the  Con- 
gress by  their  adjournment  prevent  its  return,  in  which  case  it  shall 
not  be  a  law. 


*  The  rule  is  well  settled  in  England  that  the  House  of  Commons  controls 
the  public  purse.  The  House  of  Lords  can  neither  originate  tax  bills  and  ap- 
propriation bills,  nor  amend  them;  it  is  practically  denied  the  privilege  of 
voting  against  them  when  they  are  matured  by  the  Commons.  The  exclusive 
control  of  the  purse  by  the  lower  house  represents  much  of  the  political  progress 
made  in  England  the  last  six  hundred  years.  The  principle  on  which  this  rule 
rests  is  the  one  that  the  Revolutionary  Fathers  contended  for,  viz.,  no  taxation 
without  representation.  The  House  of  Commons  consists  of  the  representatives 
of  the  nation;  the  House  of  Lords  is  an  hereditary  body.  The  people's  money 
can  be  voted  only  by  the  people's  representatives.  See  Sir  T.  El.  May,  Par- 
liamentary  Practice,  loth  edition,  pp.  50,  553,  et  scq. 


190  THE  AMERICAN  GOVERNMENT. 

335.  Reason  for  the  Veto  Power. — The  argument  by 
which  this  power  of  the  President,  pqpularly  called  the  veto, 
is  defended,  is  the  familiar  one  of  checks  and  balances. 
Congress  is  liable  to  pass  bills  that  ought  not  to  become 
laws;  the  President's  negative  may  defeat  them,  or  effect 
modifications;  at  all  events,  they  ought  not  to  become  laws 
unless  they  secure  a  two-thirds  vote  of  each  House.  Nor  is 
it  easy  to  pass  a  law  over  the  veto.  The  President  sends 
his  objections  to  the  house  in  which  the  bill  originated,  where 
they  are  entered  in  full  on  the  Journal.  The  vote  is  by  yeas 
and  nays,  and  must  also  be  entered  on  the  Journal.  If  the 
bill  fails  to  receive  two  thirds  of  the  votes  given,  the  matter 
goes  no  farther;  but  if  it  receive  that  vote,  then  it  goes  to 
the  other  house,  where  it  must  pass  the  same  ordeal. 

336.  Effects  of  a  Refusal  to  Sign. — Sometimes  the 
President  neither  signs  nor  vetoes  a  bill,  when  it  becomes  a 
law  without  his  signature  on  the  expiration  of  ten  days 
(Sundays  not  included),  unless  Congress  sooner  adjourns. 
Hence  there  are  three  ways,  so  far  as  the  President  is 
concerned,  in  which  a  bill  may  become  a  law.  By  simply 
retaining  it,  the  President  can  defeat  any  bill  that  comes 
to  him  within  ten  days  of  the  close  of  the  session.  He  is 
popularly  said,  in  this  case,  to  "  pocket "  the  bill  or  to  give 
it  a  "  pocket  veto."  This  silent  veto  is  absolute,  and  im- 
portant measures  have  been  defeated  in  this  way. 

337.  The  Veto  in  the  Convention. — The  colonial  governors, 
save  those  of  Connecticut  and  Rhode  Island,  who  had  no  such  power, 
used  the  veto  vigorously.  The  Declaration  of  Independence  charged 
the  king  with  "  refusing  his  assent  to  laws  the  most  wholesome  and 
necessary  for  the  public  good,"  and  with  "  forbidding  his  governors 
to  pass  laws  of  immediate  and  pressing  importance,"  etc.  Naturally, 
the  people  were  afraid  of  such  a  dangerous  power,  and  Massachu- 
setts was  the  only  State  that,  in  its  first  constitution,  gave  its  execu- 
tive even  a  qualified  veto.  The  whole  subject  was  warmly  debated 
in  the  convention.  It  was  proposed  to  make  a  council  of  revision, 
consisting  of  the  President  and  the  Supreme  Judges ;  to  make  the 
President's  negative  absolute ;  and  to  give  the  national  government 
a  veto  on  State  legislation.  Finally,  the  moderate  and  necessary  pro- 
vision that  we  are  discussing  was  agreed  to.    The  exercise  of  the 


ENACTING  LAWS.  I9I 

veto  power  has  often  given  rise  to  mucti  political  controversy.  Its 
free  use  by  President  Jackson  was  one  cause  of  the  organization  of 
the  Whig  party.*  Nominally  the  British  crown  has  an  absolute  veto 
on  all  bills  passed  by  Parliament,  but  it  has  not  been  used  in  a  single 
instance  since  1707. 

Section  7,  Clause  3. —  Every  order,  resolution,  or  vote  to  which 
the  concurrence  of  the  Senate  and  House  of  Representatives  may  be 
necessary  (except  on  a  question  of  adjournment)  shall  be  presented 
to  the  President  of  the  United  States ;  and  before  the  same  shall  take 
effect,  shall  be  approved  by  him,  or,  being  disapproved  by  him,  shall 
be  repassed  by  two  thirds  of  the  Senate  and  House  of  Representa- 
tives, according  to  the  rules  and  limitations  prescribed  in  the  case  of 
a  bill. 

338.  Bills,  Orders,  and  Resolutions. — ^A  bill  is  a  form 
or  draft  of  law  presented  to  a  legislative  body,  but  not 
yet  enacted  into  a  law.  The  enacting  clausf  of  a  national 
law  is,  "  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  United  States  of  America  in  Congress 
assembled."  Mr.  Jefferson  thus  distinguishes  between  an 
order  and  a  resolution :  "  When  the  house  commands,  it  is 
by  an  order.  But  facts,  principles,  and  their  own  opinions 
and  purposes  are  expressed  in  the  form  of  resolutions."  ^ 
Joint  resolutions  have  the  resolving  clause,  "  Resolved  by 
the  Senate  and  House  of  Representatives."  Joint  resolu- 
tions are  not  distinguishable  from  bills,  and  are  subject  to 
the  same  rules.  Other  forms  of  resolutions  are  resolutions 
by  the  separate  houses  and  concurrent  resolutions.     Were 

1  Presidential  Vetoes. —  In  the  first  hundred  years  under  the  Constitution 
Washington  vetoed  2  bills,  Madison  6,  Monroe  i,  Jackson  12,  Tyler  9,  Polk  3, 
Pierce  9,  Buchanan  7,  Lincoln  3,  Johnson  21,  Grant  43,  Hayes  12,  Arthur  4, 
Cleveland  301,  making  433  in  all.  One  bill  was  passed  over  Tyler's  veto,  5  over 
Pierce's,  15  over  Johnson's,  4  over  Grant's,  i  over  Hayes's,  i  over  Arthur's, 
and  2  over  Cleveland's,  making  a  total  of  29.  Several  of  the  Presidents  have 
sent  to  Congress  protests  relative  to  their  exercise  of  the  veto  power.  Previous 
to  the  4th  of  March,  1889,  453  bills  became  laws  by  the  lodays'  rule;  2  in 
Buchanan's  term,  i  in  Lincoln's,  18  in  Johnson's,  136  in  Grant's,  13  in  Ar- 
thur's, and  283  in  Cleveland's.  Ah  the  Presidents  previous  to  President  Harri- 
son signed  2i,7S9  acts  and  resolutions.  The  total  of  such  acts  and  resolutions 
to  find  a  place  in  the  statute  book  within  the  same  limits  is  22,246.  The  bills 
vetoed  may  be  divided  into  two  classes:  those  deemed  unconstitutional,  and 
those  deemed  unnecessary  or  inexpedient,  the  second  being  by  far  the  larger 
class. —  See  Harvard  Historical  Monographs,   No.  I.,   1890. 

*  Manual  of  Parliamentary  Practice. 


192  THE  AMERICAN  GOVERNMENT. 

it  not  for  this  clause,  Congress  might  defeat,  at  least  partly, 
the  operation  of  the  preceding  one  by  calling  its  acts  motions, 
votes,  or  resolutions  instead  of  bills. 

339.  Limitations  of  the  Veto. — In  1794  the  objection  was  made, 
in  the  case  of  Hollingsworth  v.  Virginia,^  that  Amendment  XI.  had 
not  been  constitutionally  adopted,  because  it  had  not  been  presented 
to  the  President  for  his  approval.  The  Attorney-General  replied 
that  this  had  not  been  done  in  case  of  the  ten  amendments  previ- 
ously adopted.  He  argued,  also,  that  an  amendment  "  is  a  substan- 
tive act,  unconnected  with  the  ordinary  business  of  legislation,  and 
not  within  the  policy  or  terms  of  investing  the  President  with  a 
qualified  negative  on  the  acts  and  resolutions  of  Congress."  The 
Supreme  Court  unanimously  sustained  this  view,  and  declared  the 
amendment  a  part  of  the  Constitution.  And  yet  the  so-called 
"  Douglas  Amendment "  was  sent  to  President  Buchanan,  who  ap- 
proved it,  March*  2,  1861.  In  February,  1865,  Congress  sent  to  the 
President  a  joint  resolution  declaring  that  certain  States  were  not 
entitled  to  presidential  electors  because  they  were  then  in  rebellion 
against  the  government.  President  Lincoln  signed  the  resolution, 
but  sent  to  Congress  a  message  declaring  this  unnecessary,  as  the 
two  houses  had  exclusive  authority,  under  the  Constitution,  to  count 
the  electoral  votes.  In  March,  1866,  the  houses  adopted  a  concurrent 
resolution  declaring  that  no  Senator  or  Representative  should  be 
admitted  into  either  branch  of  Congress  from  any  of  the  eleven 
States  then  considered  in  rebellion,  until  Congress  should  have 
declared  such  State  entitled  to  such  representation ;  and  this  resolu- 
tion President  Johnson  was  not  asked  to  approve. 

340.  The  Committee  System. — Experience  has  proved  it  to  be 
impossible  for  a  large  legislative  assembly  to  do  business  efficiently 
without  some  interior  organization  whereby  a  few  directing  minds 
shall  be  charged  with  the  preparation  and  conduct  of  business,  either 
in  whole  or  in  part.  This  necessity  has  been  met  by  different 
legislatures  in  different  ways ;  but  Congress  has  met  it  by  the  ap- 
pointment of  standing  committees,  so  called  because  they  are  con- 
stituted according  to  the  rules  of  the  two  houses,  and  because  they 
continue  in  charge  of  the  same  general  subjects  for  a  whole  Con- 
gress, or  a  period  of  two  years.  The  Senate  committees  are  imme- 
diately chosen  by  the  Senators  voting  by  ballot,  but  the  elections  are 
practically  controlled  by  party  caucuses ;  the  House  committees  are 
appointed  by  the  Speaker.  In  either  case  the  man  first  named  on  the 
committee  is  its  chairman.     The  committees  in  each  house  consist 

'  J  Dallas,  378, 


ENACTING  LAWS. 


193 


of  from  three  to  seventeen  members  each.  The  committees  originate 
some  measures,  and  to  them  bills  that  are  introduced  by  members 
are  referred  on  their  second  reading,  the  particular  committee  desig- 
nated being  determixied  by  the  nature  of  the  subject.  Except  that 
it  may  be  instructed  by  vote  of  the  house  to  which  it  belongs,  a  com- 
mittee does  what  it  pleases  with  the  bills  referred  to  it,  reporting 
them  back  as  introduced,  reporting  them  back  with  amendments,  or, 
in  most  cases,  paying  no  attention  to  them  whatever.  The  commit- 
tee may  hear  the  author  of  a  bill  on  its  merits ;  it  may  take  evidence 
relative  to  the  matter,  or  listen  to  arguments  from  citizens  who  are 
especially  interested  in  it;  it  examines  the  subject  in  its  own  way, 
and  declares  its  mind  by  the  vote  of  its  members.  Frequently  the 
bills  that  are  reported  back  from  committees  are  largely  or  wholly 
made  over.  The  rules  are  so  constructed  as  to  place  a  certain 
amount  of  time  each  session  at  the  disposal  of  each  committee. 
There  are  also  select  committees,  appointed  like  the  regular  ones, 
whose  existence  expires  on  the  performance  of  their  special  duties. 
In  January,  1904,  the  Senate  had  fifty-five  standing  committees ;  the 
House,  sixty.  Necessarily  some  members'  names  appear  on  several 
committee  lists.  In  both  houses,  and  particularly  in  the  lower  house, 
the  several  commitfees  exercise  great  power  over  the  course  of  legis- 
lation. This  is  especially  true  of  the  Committee  on  Rules,  which 
often  decides  practically  whether  the  House  of  Representatives  shall 
consider  a  subject  or  not.  The  Speaker,  who  appoints  the  commit- 
tees, and  is  always  a  member  of  the  Committee  on  Rules,  is  clothed 
with  an  enormous  influence  over  law-making  that  lies  wholly  out- 
side the  pale  of  the  Constitution  and  the  laws.^ 


*  Mr.  Bryce,  pointing  out  the  evils  of  the  committee  system,  says  :  "  Since 
the  practical  work  of  shaping  legislation  is  done  in  committees,  the  interest  of 
members  centers  there,  and  they  care  less  about  the  proceedings  of  the  whole 
body.  It  is  as  a  committeeman  that  a  member  does  his  real  work.  In  fact, 
the  House  has  become  not  so  much  a  legislative  assembly  as  a  huge  panel  from 
which  committees  are  selected.  Except  in  exciting  times,  when  large  questions 
have  to  be  settled,  the  bulk  of  real  business  is  done,  not  in  the  great  hall  of  the 
House,  but  in  this  labyrinth  of  committee  rooms  and  the  lobbies  that  surround 
them."     Vol.   I.,  pp.    159-161.      (1894.) 

Prof.  A.  B.  Hart  observes:  "The  powers  now  exercised  by  the  Speaker 
will  probably  be  exercised  by  each  succeeding  Speaker,  and  will  somewhat  in- 
crease. Since  the  legislative  department  in  every  republic  constantly  tends  to 
gain  power  at  the  expense  of  the  executive,  the  Speaker  is  likely  to  become,  and 
perhaps  is  already,  more  powerful,  both  for  good  and  for  evil,  than  the  Presi- 
dent of  the  United  States." — Practical  Essays  on  American  Government,  p.  19. 
See  also  Woodrow   Wilson,  Congressional  Government, 


AM.   GOV. — 13. 


CHAPTER  XXV. 

THE  GENERAL  POWERS  OF  CONGRESS. 

Article  I. 

The  preceding  sections  constitute  the  two  houses  of 
Congress  and  define  some  of  their  separate  powers.  We 
come  now  to  a  particular  enumeration  of  what  are  called 
the  general  powers  of  Congress.  Section  8  of  Article  I. 
is  second  in  importance  to  no  other  section  of  the  Con- 
stitution; its  eighteen  clauses  are  the  engine  that  drives 
the  whole  machinery  of  the  government,  and  without  them 
that  machinery  would  never  have  moved.  Professor  John- 
son has  well  said :  "  The  most  solid  and  excellent  work 
done  by  the  Convention  was  its  statement  of  the  powers  of 
Congress  (in  section  8  of  Article  I.),  and  its  definition  of 
the  sphere  of  the  federal  judiciary  (in  Article  III. 5^  The 
several  clauses  of  the  section  all  depend  upon  the  declara- 
tion, "  The  Congress  shall  have  power." 
I.    Taxation. 

Section  2,  Clause  3. —  Representatives  and  direct  taxes  shall  be 
apportioned  among  the  several  States  which  may  be  included  within 
this  Union,  according  to  their  respective  numbers,  which  shall  be 
determined.    .    .    . 

Section  8,  Clause  i. — The  Congress  shall  have  power  to  lay  and 
collect  taxes,  duties,  imposts,  and  excises,  to  pay  the  debts  and  pro- 
vide for  the  common  defense  and  general  welfare  of  the  United 
States ;  but  all  duties,  imposts,  and  excises  shall  be  uniform  through- 
out the  United  States. 

341.  Necessity  of  this  Power. — The  national  taxing 
power  is  very  comprehensive,  and  properly  stands  at  the 
head  of  the  list  of  powers  granted  to  Congress.  Revenue 
is  the  lifeblood  of  government.  "  Without  the  possession 
of  this  power,"  says  Justice  Story,  "  the  Constitution  would 

(«94) 


THE  GENERAL  POWERS  OF  CONGRESS.  195 

have  long  since,  like  the  Confederation,  dwindled  down 
to  an  empty  pageant.  It  would  have  become  an  unreal 
mockery,  deluding  our  hopes  and  exciting  our  fears.  It 
would  have  flitted  before  us  a  moment,  with  a  pale  and 
imperfect  light,  and  then  have  departed  forever  to  the  land 
of  shadows." 

342.  Kinds  of  Taxes. — A  tax  is  a  regular  pecuniary 
charge  imposed  by  government  upon  the  people  for  its 
own  support.  Capricious  and  arbitrary  levies  imposed  by 
a  conqueror  or  tyrant  are  not  proper  taxes.  The  Constitu- 
tion makes  two  kinds  of  taxes,  direct  and  indirect,  although 
the  second  term  is  not  used.*  The  Supreme  Court  has  de- 
cided that  poll  taxes,  and  taxes  on  land  and  personal  prop- 
erty, including  taxes  on  income  from  land  and  personal 
property,  are  direct  taxes.^  Indirect  taxes  are  collectively 
called  duties,  imposts,  and  excises  without  discrimination. 
Direct  taxes,  like  Representatives,  are  apportioned  among 
the  States  according  to  their  respective  numbers  of  popula- 
tion (Article  I.,  section  2,  clause  3)  ;  indirect  taxes  must 
be  uniform  throughout  the  Union.  In  1820  the  Supreme 
Court  decided  that  the  power  of  Congress  to  levy  and  col- 
lect taxes  is  coextensive  with  the  national  territory,  but  that 
it  is  optional  with  Congress  to  extend  the  laws  imposing 
them  over  the  Territories  and  District  of  Columbia.^ 

343.  Direct  Taxes. — Direct  taxes  have  proved  to  be 
much  less  important  than  was  anticipated  in  1787.  The 
taxgatherer  is  never  a  welcome  visitor,  and  least  of  all 
when  he  pries  closely  into  people's  private  affairs.  Taxes 
on  consumption,  as  on  imports  collected  at  a  seaport,  or  on 
liquors,  tobacco,  etc.,  collected  at  the  place  of  manufacture, 
have   proved   more   consonant   with   popular    feeling  than 


»  Writers  on  Political  Economy,  in  distinguishing  between  direct  and  in- 
direct taxes,  do  not  draw  the  line  where  the  Constitution  draws  it.  As  defined 
by  them,  a  direct  tax  is  one  paid  by  the  person  on  whom  it  is  assessed,  while 
an  indirect  tax  is  immediately  paid  by  one  person,  but  ultimately  paid  by  an- 
other. 

*  Springer  v.  the  United  States,  102  U.  S.,  586.     See  paragraph  346. 

•Loughborough  v.  Blake,  s  Wheaton.  317. 


196  THE  AMERICAN  GOVERNMENT. 

taxes  paid  at  the  citizen's  own  door.  Consequently,  Con- 
gress has,  in  the  main,  abandoned  the  field  of  direct  taxa- 
tion to  the  States.  Only  five  times  in  the  history  of  the 
national  government  have  direct  taxes  been  levied:  1798, 
1813,  1815,  1816,  1861.  The  several  acts  bearing  these  dates 
have  declared  the  whole  amount  to  be  raised  by  the  tax, 
as  $2,000,000  in  1798  and  $20,000,000  in  1861,  and  have 
apportioned  the  amounts  among  the  States  according  to 
the  constitutional  rule ;  they  have  specified  the  property 
on  which  the  tax  was  to  be  levied,  and  created  machinery 
for  its  collection.  The  early  acts  placed  the  tax  on  slaves 
and  lands,  the  last  one  placed  it  on  lands  alone.  The 
tax  of  181 5  embraced  the  District  of  Columbia,  and  that 
of  1 86 1  the  Territories  also.  Some  of  these  acts,  as  the 
last  one,  have  offered  the  States  the  option  of  assuming  the 
tax,  coupled  with  a  percentage  for  its  collection.  When  this 
is  done  the  State  levies  and  collects  the  tax  as  it  pleases. 
The  States  that  formed  the  Southern  Confederacy  did  not 
pay  the  tax  of  1861  until  the  close  of  the  war,  and  not 
then  in  full.  In  1891  Congress  refunded  to  the  States,  Ter- 
ritories, and  District  of  Columbia  what  they  had  paid. 

Since  1861  the  two  great  sources  of  revenue  have  been  customs  and 
internal  taxes.  For  instance,  for  the  fiscal  year  ending  June  30,  1897, 
the  total  income  of  the  government  was  $430,387,167.89,  of  which 
customs  yielded  $176,554,126.65;  internal  revenue,  $146,688,574.29; 
the  postal  service,  $82,387,167.89.  The  total  expenditure  for  the  same 
year  was  $448,438,622.30. 

344.  Duties,  Imposts,  and  Excises. — It  is  impossible  to 
make  close  distinctions  between  the  terms  duties,  impost;s, 
and  excises.  The  words  no  doubt  include  every  form  of 
indirect  tax.  Duties  are  customs  levied  on  imported  goods. 
Imposts  are  sometimes  duties,  but  commonly  the  word  is 
used  in  a  broader  sense,  as  synonymous  with  tax.  Excises 
are  internal  taxes,  as  duties  are  external  ones.  The  na- 
tional taxes  on  whisky,  malt  liquors,  and  tobacco  are  all 
excises.  It  is  said  that  the  word  excise  is  not  found  in 
the  national  laws,  and  in  common  speech  internal  taxes,  or 


THE  GENERAL  POWERS  OF  CONGRESS.  197 

internal  revenue,  has  taken  its  place.  To  distinguish  be- 
tween direct  and  indirect  taxes  has  given  rise  to  much  liti- 
gation, and  the  Supreme  Court  has  decided  that  taxes  on 
carriages,^  on  the  income  of  corporations,^  and  on  bank  cir- 
culation^ are  not  direct  taxes  but  excises. 

345.  Internal  Revenue. — As  already  stated,  what  the 
Constitution  calls  excises  are  now  known  as  internal  taxes 
or  internal  revenue.  At  only  two  periods  had  such  taxes 
been  levied  by  Congress  previous  to  the  Civil  War.  From 
1 79 1  to  1803  some  excises  were  imposed,  and  the  Whisky 
Insurrection  in  western  Pennsylvania  resulted  from  the  tax 
on  whisky.  In  181 3  war  compelled  the  government  again 
to  resort  to  this  form  of  taxation,  but  only  to  abandon  it 
five  years  later.  Some  internal  taxes  were  imposed  in  1861, 
and  the  Internal  Revenue  Bureau  was  created  the  next  year. 
Progressively,  taxes  were  imposed  upon  almost  everything 
that  could  be  made  to  yield  revenue.  A  high  foreign  au- 
thority has  said  that  no  other  nation  would  have  endured  a 
system  of  excise  duties  so  searching  and  burdensome.  In 
1801  the  income  from  excises  was  $1,048,000;  in  1816,  $5,- 
124,000;  in  1866,  $309,226,000.  In  1866  the  repeal  of  these 
taxes  began  and  continued  until  but  few  were  left.  The 
Spanish  War  calling  for  more  money,  an  act  was  passed 
bearing  the  date  of  June  13,  1898,  which  created  once  more 
an  extensive  system  of  internal  revenue.  Taxes  on  liquors 
and  tobacco  were  increased,  and  new  taxes  were  levied  on 
bankers  and  brokers,  insurance  of  all  kinds,  leases,  and  many 
other  persons  and  interests,  including  a  long  list  of  stamp 
taxes.     Most  of  these  taxes  were  repealed  in  a  few  years. 

346.  Income  Taxes. — To  meet  the  needs  of  the  government 
growing  out  of  the  Civil  War,  Congress  imposed  in  1861  a  tax  of  3 
per  cent,  on  all  incomes  over  $800.  It  was  the  first  tax  of  the  kind 
under  the  Constitution.  The  next  year  the  tax  was  made  5  per  cent, 
on  incomes  less  than  $S,ooo,  with  an  exemption  of  $600  and  house 
rent  actually  paid ;  7J/2  per  cent,  on  incomes  of  $5,000  and  not  over 

»Hylton  V.  U.  S.,  3  Dallas.  171. 

'  Pacific  Insurance  Co.  v.  Soule,  7  Wallace,  433.     See  paragraph  346. 

'.Veazie  Bank  v,  Fenno,  8  Wallace,  533. 


198  THE  AMERICAN  GOVERNMENT. 

$10,000,  and  10  per  cent,  on  all  incomes  in  excess  of  the  last  named 
sum.  in  1869  a  special  income  tax  of  5  per  cent,  was  laid  on  all  in- 
comes of  $600.  There  was  subsequent  legislation  down  to  1872, 
when  the  tax  expired  by  limitation. 

Income  tax  features  were  incorporated  in  the  act  to  reduce  taxa- 
tion, to  provide  revenue,  etc.,  which  took  effect  August  26,  1894, 
without  the  President's  approval.  The  rate  was  made  2  per  cent,  on 
all  incomes  over  $4,000,  derived  from  property,  salary,  trade,  etc., 
not  including  necessary  expenses,  taxes,  and  interest,  carried  on  in 
the  United  States  or  elsewhere,  and  it  applied  to  corporations,  com- 
panies, and  associations,  as  well  as  private  individuals,  but  not  in- 
cluding partnerships.  By  two  decisions,  which  are  popularly  known 
as  the  income  tax  cases,  the  Supreme  Court  completely  nullified  this 
legislation.  It  ruled  in  the  decision  rendered  May  20,  1895,  that 
taxes  on  the  rents  or  income  of  real  estate  are  direct  taxes,  equally 
with  taxes  on  real  estate  itself;  also  that  taxes  on  personal  property, 
or  on  the  income  of  personal  property,  are  likewise  direct  taxes.  The 
court  therefore  held  that  the  tax  imposed  on  incomes  by  this  act  was 
unconstitutional,  void,  and  invalid,  because  the  act  did  not  apportion 
it  among  the  States  according  to  their  respective  numbers,  but  rather 
treated  the  tax  on  incomes  as  an  excise.  These  conclusions  are 
apparently  at  variance  with  previous  decisions  of  the  court  in  regard 
to  direct  taxes.  The  court  was  divided,  five  members  voting  against 
the  law  and  four  for  it.     (See  paragraphs  343-344.)* 

347.  Question  of  Construction. — There  is  an  old  question  con- 
cerning the  interpretation  of  the  fir^t  part  of  the  second  clause  quoted 
above.  Do  the  words  "  to  pay  the  debts,"  etc.,  limit  the  words  "  to 
lay  and  collect  taxes,"  or  the  words  "  shall  have  power?  "  In  other 
words,  has  Congress  power  only  to  collect  taxes  in  order  to  pay  the 
debts  and  provide  for  the  common  defense  and  the  general  welfare, 
or  has  it  power  to  collect  taxes  without  reference  to  these  objects? 
The  one  construction  limits  the  taxing  power  to  certain  designated 
ends ;  the  other  imposes  no  limit  whatever.  There  is  little  doubt 
that  the  first  view  is  the  true  one.  The  question,  perhaps,  is  rather 
more  curious  than  practical. 

II.    Loans,  Coinage,  and  Currency. 

Section  8,  Clause  2. —  To  borrow  money  on  the  credit  of  the 
United  States. 

Section  8,  Clause  5. —  To  coin  money,  regulate  the  value  thereof, 
and  of  foreign  coin.     .    .     . 


'  Pollock  V.  Farmers'  Loan  and  Trust  Co.,  157  U.  S.,  429;  Pollock  v.  Farm- 
ers' Lpai)  and  Trust  Company  (rehearing),  158  U.  S.,  601. 


THE  GENERAL  POWERS  OF  CONGRESS.  199 

Section  10,  Clause  i. — No  State  shall  .  .  .  coin  money,  emit 
bills  of  credit,  [or]  make  anything  but  gold  and  silver  coin  a  tender 
in  payment  of  debts.    .    .    . 

348.  Extent  of  the  National  Authority. — The  fore- 
going clauses  are  delegations  of  power  to  Congress  covering 
the  whole  subject  of  coinage,  currency,  and  banking,  as  well 
as  the  making  of  loans  on  the  national  credit.  The  several 
powers  or  functions  cohere  so  closely  that  they  cannot  be 
separated  in  practice.  Moreover,  the  Supreme  Court  has 
decided  that  Congress  has  the  right  to  regulate  all  bank 
issues  that  circulate  as  money.^  But  Congress  was  slow  to 
exercise  these  great  powers,  and  it  never  fully  exercised 
them  until  compelled  to  do  so  by  the  pressure  of  the  Civil 
War. 

349.  Power  to  Borrov?^  Money. — Power  to  borrow 
money  is  almost  as  necessary  to  a  government  as  power  to 
levy  taxes.  Ordinary  expenditures  may  be  met  by  taxation, 
but  in  times  of  war  or  other  emergency  this  resource  is 
likely  to  prove  inadequate.  For  example,  the  ordinary 
revenues  of  the  United  States  increased  from  $41,476,000 
in  1 861  to  $579,949,000  in  1865 ;  the  public  debt,  from 
$90,580,000  to  $2,773,336,000  in  the  same  time. 

350.  National  Bonds. — One  way  in  which  Congress 
borrows  money  is  to  sell  bonds.  These  are  the  nation's 
promises  to  pay  specified  amounts,  within  a  specified  time, 
with  interest  at  specified  rates.  During  the  Civil  War, 
more  than  five  billions  of  dollars  of  such  bonds  were  sold, 
many  of  them  to  replace  others  that  were  cancelled.  Upon 
most  of  these  issues  the  government  paid  six  per  cent  in- 
terest, but  the  major  part  has  been  paid  off  and  the  remain- 
der replaced  with  other  bonds  at  much  lower  rates.  The 
issue  made  under  the  Act  of  1900  bears  only  two  per  cent. 

351.  Treasury  Notes. — A  second  way  in  which  Con- 
gress borrows  money  is  to  issue  treasury  notes,  called  by 
the  Constitution  bills  of  credit.     The  Continental   money 

^Veazie  Bank  v.  Fenno,  8  Wallace,  533- 


200  THE  AMERICAN  GOVERNMENT. 

consisted  of  such  notes  or  bills.  Such  notes  were  issued 
under  the  Constitution  at  various  times  before  the  Civil 
War.  Some  of  them  bore  interest,  some  were  due  on 
demand,  some  were  payable  to  bearer  and  some  to  order, 
and  some  were  receivable  in  payment  of  dues  to  the  treas- 
ury. The  government  paid  them  to  such  of  its  creditors  as 
were  willing  to  take  them,  and  redeemed  them  in  accord- 
ance with  the  terms  of  the  laws  under  which  they  were 
issued.  The  notes  made  payable  to  bearer  commonly  cir- 
culated as  money,  but  none  of  the  notes  issued  before  1862 
were  a  legal  tender. 

352.  The  Legal-Tender  Act. — By  an  act  approved  Feb- 
ruary 25,  1862,  Congress  declared  an  issue  of  notes  then 
authorized  "  lawful  money  and  a  legal  tender  in  payment 
of  all  debts,  public  and  private,  except  duties  on  imports, 
and  interest  on  the  bonds  and  [interest-bearing]  notes  of 
the  United  States."  This  issue  was  limited  to  $150,000,- 
000,  but  it  was  followed  by  other  issues  until  $450,000,000 
had  been  authorized ;  afterwards  the  amount  was  reduced  to 
$346,681,016.  The  government  interest  was  excepted  from 
the  legal-tender  clause,  because  the  public  credit  could  not 
be  maintained  unless  this  interest  was  paid  in  coin,  and  cus- 
toms duties  were  excepted  in  order  to  create  a  fund  of  coin 
with  which  to  pay  it.  The  people  who  received  these  notes 
in  payment  of  debts  really  loaned  the  government  corre- 
sponding amounts ;  and  as  they  were  compelled  to  take  them 
in  payment  of  debts,  the  notes  represented  a  forced  loan. 
Their  issuance  was  a  suspension  of  specie  payments. 

353.  Constitutionality  of  the  Act. — Opponents  of  this  measure 
denied  that  the  Constitution  had  delegated  any  such  power  to  Con- 
gress. Its  champions  replied  that  Congress  had  power  to  borrow 
money,  and  that  it  was  its  duty  to  provide  for  the  common  defense. 
It  was  expressly  stated  at  the  time,  however,  that  the  legal  tenders 
were  a  war  measure,  and  that  Congress  would  have  no  right  to  issue 
them  in  time  of  peace.  The  Supreme  Court  decided  in  1868^  that 
the  legal  tender  clauses  of  the  Acts  of  1862  and  1863  were  unconsti- 
tutional so  far  as  they  applied  to  debts  contracted  before  the  passage 

»  Hepburn  v.  Griswold,  8  Wallace  603. 


THE  GENERAL  POWERS  OF  CONGRESS.  201 

of  those  acts ;  but  a  year  later  the  court  reversed  this  decision  and 
affirmed  the  constitutionality  of  the  clauses.*  In  1884  the  court 
made  a  further  decision  which  was  a  complete  reversal  of  the  view 
held  by  the  champions  of  legal  tenders  in  1862-63.  The  Reporter 
sums  up  the  opinion  of  the  court  in  the  following  propositions : 

"  Congress  has  the  constitutional  power  to  make  the  treasury 
notes  of  the  United  States  a  legal  tender  in  payment  of  private  debts, 
in  time  of  peace  as  well  as  in  time  of  war. 

"  Under  the  Act  of  May  31,  1878,  Ch.  146,  which  enacts  that  when 
any  United  States  legal-tender  notes  may  be  redeemed  or  received 
into  the  treasury  and  shall  belong  to  the  United  States,  they  shall  be 
reissued  and  paid  out  again  and  kept  in  circulation,  notes  so  reissued 
are  legal  tender."* 

The  men  who  framed  the  Constitution  undoubtedly  supposed  they 
were  making  irredeemable  paper  money,  issued  by  the  government, 
impossible.  Mr.  Madison  said  the  Convention  "had  cut  off  the 
pretext  for  a  paper  currency,  and  particularly  for  making  the  bills  a 
legal  tender,  either  for  public  or  private  debts." ' 

354.  Are  Treasury  Notes  Real  Money? — During  the  suspen- 
sion of  specie  payments,  the  question  arose  whether  these  notes  were 
real  money.  On  the  one  hand,  it  was  said 'that  they  had  been  de- 
clared a  legal  tender,  that  they  as  well  as  coin  paid  debts,  that  money 
is  made  by  the  stamp  of  government,  and  that  they  had  the  stamp. 
It  was  replied  that  real  money  contains  intrinsic  value,  and  that 
paper  money  will  not  long  circulate  at  par  unless  redeemable  in  real 
money,  that  is,  in  gold  and  silver.  It  was  also  denied  that  the  gov- 
ernment stamp  gives  money  its  value.  For  example,  the  law  author- 
izing the  coinage  of  the  eagle  says  it  shall  contain  a  certain  quantity 
of  gold  of  a  certain  fineness,  and  the  mint  stamp  is  simply  the  gov- 
ernment's certificate  that  the  eagle  actually  contains  the  kind  and 
quality  of  metal  specified.  The  value  of  the  eagle  does  not  come 
from  the  stamp,  for  it  will  command  the  same  price  when  the  stamp 
is  effaced.  The  words  "  one  eagle  "  mean  this  is  one  eagle ;  while  the 
treasury  note  of  the  same  denomination  is  not  really  ten  dollars  but 
a  promise  to  pay  ten  dollars.  Then  again,  the  value  of  the  note 
depends  upon  the  belief  that,  sometime,  this  promise  will  be  kept. 
The  eagle  pays  a  debt  forever ;  the  note  postpones  final  payment  to 
some  future  time.  Dr.  Andrews  has  well  said:  '"If  the  treasury 
notes  in  the  hands  of  the  people  were  veritable  money,  as  truly  so  as 
gold,  then  the  United  States  would  not  be  indebted  to  those  who 


*  LcRal  Tender  Cases,  12  Wallace  457. 
■Juiiliard  v.  Greenman,  no  U.  S.  p.  421. 
•Elliot,  Debates.  Vol.  V.,  p.  435.  Note. 


202  THE  AMERICAN  GOVERNMENT. 

hold  them  any  more  than  it  is  to  those  who  have  gold  eagles  in  their 
possession;  and  the  Treasury  Department  would  not  report  these 
treasury  notes  as  a  part  of  the  national  debt." ' 

355.  Taxability  of  National  Bonds,  Notes,  etc. — The  great  in- 
crease of  the  public  debt  in  1861-1865  led  to  the  question  whether 
national  bonds  and  notes  were  taxable.  More  narrowly,  it  was 
whether  the  States  could  tax  them.  The  question  had  been  passed 
upon  long  before.  In  1820  the  Supreme  Court  declared  that  the 
States  have  no  power  or  right  to  tax  any  of  the  constitutional 
means  employed  by  the  government  of  the  Union  to  execute  its 
constitutional  powers.  The  argument  was  thus  stated  by  Chief- 
Justice  Marshall : 

"  If  the  States  may  tax  one  instrumerit  employed  by  the  govern- 
ment in  the  execution  of  its  powers,  they  may  tax  any  and  every 
other  instrument.  They  may  tax  the  mail ;  they  may  tax  the  patent 
rights ;  they  may  tax  the  papers  at  the  customhouse ;  they  may  tax 
judicial  process;  they  may  tax  all  the  means  employed  by  the  gov- 
ernment to  an  excess  which  would  defeat  all  the  ends  of  government. 
This  was  not  intended  by  the  American  people.  They  did  not  make 
this  government  dependent  upon  the  States."* 

This  reasoning  applies  to  all  the  fiscal  instruments  authorized  by 
the  national  government,  either  directly  or  indirectly.  However, 
Congress  passed  an  act,  approved  August  13,  1894,  which  provides 
that  circulating  notes  of  the  national  banks  and  United  States  legal 
tender  notes,  and  other  notes  and  certificates  of  the  United  States 
payable  on  demand  and  circulating  or  intended  to  circulate  as  cur- 
rency, and  gold,  silver,  or  other  coin,  shall  be  subject  to  taxation  as 
money  on  hand  or  on  deposit  under  the  laws  of  every  State  and  Ter- 
ritory, and  at  the  same  rate  as  other  money  or  currency  circulating 
as  money  within  its  jurisdiction. 

356.  Resumption  of  Specie  Payments. — When  specie 
payments  were  suspended  in  1861  the  understanding  was 
that  they  would  be  resumed  as  soon  as  practicable.  In 
1869  Congress  solemnly  pledged  the  faith  of  the  nation  to 
resumption  at  the  earliest  period.  In  1875  it  passed  an  act 
directing  the  Secretary  of  the  Treasury,  on  and  after  Jan- 
uary I,  1879,  to  redeem  in  coin  the  treasury  notes  then 
outstanding,  on  their  presentation  in  sums  of  $5,000  or 
more   at   the    subtreasury   of   the   United    States   in    New 


^  New  Manual  of  the  Constitution,  p.   116. 
*McCulloch  V.  Maryland,  4  Wbeaton  516. 


THE  GENERAL  POWERS  OF  CONGRESS.     203" 

York.  Specie  payments  were  accordingly  resumed  at  that 
time.  However,  the  treasury  notes  were  not  cancelled  on 
redemption,  but  were  still  considered  as  money  and  reissued 
in  payment  of  the  government  expenses,  which  operated  to 
keep  a  large  amount  of  them  in  circulation.  The  Act  of 
1900  provides  that  all  such  notes,  on  presentation  to  the 
treasury  for  redemption,  Shall  be  redeemed  in  standard 
gold  coin,  and  in  order  to  secure  such  redemption  the  Secre- 
tary of  the  Treasury  is  instructed  to  set  apart  and  to  main- 
tain in  the  treasury  a  reserve  fund  of  $150,000,000  in  gold 
coin  and  bullion  to  be  used  for  redemption  purposes  only. 

357.  Coinage  in  the  Articles  of  Confederation. — The 
Congress  of  the  Confederation  had  the  exclusive  power 
to  regulate  the  alloy  and  value  of  coin,  whether  struck  by 
its  own  authority  or  that  of  the  States,  as  well  as  of  fixing 
the  standard  of  weights  and  measures  throughout  the 
United  States.  This  provision  was  of  no  practical  conse- 
quence, however,  for,  save  some  copper  cents,  neither  Con- 
gress nor  the  States  coined  any  money.  The  Convention 
of  1787  went  further  and  forbade  the  States  to  coin  money 
or  to  make  anything  but  gold  and  silver  coin  a  legal  tender 
in  payment  of  debts. 

358.  Establishment  of  a  Monetary  System. — In  1785 
the  Old  Congress  made  the  dollar,  a  Spanish  coin  that 
then  circulated  more  generally  in  the  United  States  than 
any  other,  called  also  a  "  piece  of  eight,"  the  money  unit  of 
the  country,  and  adopted  the  decimal  ratio.  In  1792  the 
New  Congress  established  the  mint  in  Philadelphia.  In 
the  same  act  it  provided  for  gold,  silver,  and  copper  coins, 
assigning  them  their  names,  fixed  the  quantity  and  fine- 
ness of  metal  that  they  should  contain,  and  made  the  gold 
and  silver  coins  a  legal  tender  in  all  sums, 

359.  Regulating  the  Value  of  Money.  — Congress  regu- 
lates the  value  of  money  merely  by  determining  the  ratio  of 
3ne  metal  to  another.  If  money  consisted  of  but  one  metal, 
no  regulation  would  be  necessary  or  possible.  Congress  in 
1792  declared  that  a  gold  dollar  should  contain  24^  grains 


*204  THE  AMERICAN  GOVERNMENT. 

of  pure  gold,  and  that  a  silver  dollar  should  contain  fifteen 
times  that  amount  of  pure  silver,  or  37i>4  grains.  This 
was  acting  on  the  understanding  that  one  ounce  of  gold  was 
worth  as  much  as  fifteen  ounces  of  silver, 

360.  Fineness  and  Weight  of  Coins. — The  fineness  and 
weight  of  our  coins  have  been  different  at  different  times. 
In  1792  the  alloy  in  gold  was  made  one  part  in  12,  or 
the  coin  was  ||  fine;  the  alloy  in  silver  was  made  179  parts 
in  1485,  that  is,  the  coin  was  89.243,  or  a  little  less  than  ^^ 
fine,  but  since  1837  the  standard  coins  of  both  metals  have 
been  ^  fine.  The  gold  dollar  of  1792  weighed  27  grains 
of  standard  metal;  the  silver  dollar,  416  grains.  Since  1834 
the  gold  dollar  has  weighed  25 A  grains,  and  since  1837 
the  silver  dollar,  412)^  grains.  The  amount  of  pure  silver 
in  the  dollar  has  been  the  same  throughout ;  but  since  1853 
a  dollar  of  fractional  silver  currency  has  contained  only 
347rFff    grains  of  pure  metal,  or  385  xV  of  standard  metal. 

361.  Change  of  Ratio.— It  was  found  in  time  that  gold 
was  undervalued  as  compared  with  silver.  The  result  was, 
that  gold  coins  struck  at  the  mint  were  sent  to  other  coun- 
tries where  they  commanded  a  higher  price.  So  Congress 
in  1834  reduced  the  amount  of  pure  metal  in  the  gold  dollar 
to  231%  grains,  and,  as  the  silver  dollar  was  not  changed, 
the  ratio  now  stood  i  to  15.988.  And  that  has  since  re- 
mained the  ratio.  It  soon  appeared,  however,  that  silver 
was  now  undervalued ;  the  ratio  in  the  mints  of  Europe 
was  but  I  to  153^.  To  make  the  matter  worse,  silver  con- 
tinued to  rise  in  value  as  compared  with  gold,  particu- 
larly after  the  discovery  of  gold  in  California  and  Austra- 
lia. Silver  coin  was  now  exported  as  gold  had  been  before, 
and  little  coin  but  gold  was  in  circulation.  There  was  a  lack 
of  small  coins  for  change.  Congress  corrected  this  evil 
in  1853,  by  so  reducing  the  quantity  of  metal  in  the  minor 
silver  coins  that  there  was  no  longer  a  motive  for  sending 
them  abroad.  At  the  same  time  their  legal  tender  power 
was  limited  to  $5.00. 

362.  Demonetization  of  Silver. — As  we  have  seen,  silver 


THE  GENERAL  POWERS  OF  CONGRESS.  205 

coin  nearly  ceased  to  circulate  after  1834.  Practically,  the 
412^  grain  dollar  was  demonetized  after  that  year.  For 
this  reason,  and  also  because  the  foremost  commercial  na- 
tions made  gold  their  sole  monetary  standard.  Congress  in 
1873  dropped  that  dollar  from  the  list  of  coins  to  be  struck 
at  the  mint.  At  the  same  time  Congress  authorized  the 
trade  dollar,  weight  420  grains  of  standard  silver.  The 
trade  dollars  were  coined  for  the  Chinese  trade,  and  when 
enough  of  them  had  been  struck  for  that  purpose  their 
further  coinage  was  suspended.  They  have  now  been  called 
into  the  treasury. 

363.  Silver  Act  of  1878. — Previous  to  1873  the  metal  in  a  silver 
dollar  had  been  worth,  at  diflferent  times,  from  2  to  4J4  cents  more 
than  the  metal  in  a  gold  dollar.  In  1873  it  was  worth  tV  of  ^  cent 
more.  But  soon  after  the  coinage  act  of  that  year  went  into  opera- 
tion, silver  began  to  fall  in  value,  and  it  continued  to  fall  until  it 
was  worth  but  75  cents  in  1887,  and  but  40  cents  in  1903.  There 
soon  sprang  up  a  popular  demand  for  the  recoinage  of  the  silver 
dollar.  In  1878  Congress  passed  an  act  restoring  it  to  the  list  of 
authorized  coins,  at  its  old  weight  and  fineness,  and  required  the 
Secretary  of  the  Treasury  to  purchase  silver  bullion  at  the  current 
price  and  to  coin  it  into  dollars,  not  less  than  $2,000,000  nor  more 
than  $4,000,000  a  month.  The  minor  silver  coins  when  presented  in 
sums  of  $20  or  more  were  made  redeemable  in  legal  tender  money. 

364.  Silver  Act  of  1890. — The  law  of  1878  not  proving  satisfac- 
tory to  the  advocates  of  an  enlarged  use  of  silver,  Congress  enacted 
in  1890  a  new  one  embracing  the  following  features : 

The  Secretary  of  the  Treasury  was  required  to  purchase  4,500,000 
ounces  of  silver  bullion  each  month,  or  so  much  thereof  as  might 
be  offered,  at  the  market  price,  not  exceeding  one  dollar  for  371.25 
grains  of  pure  silver.  This  silver  he  should  pay  for  with  treasury 
notes,  issued  expressly  for  this  purpose,  which  should  be  a  legal 
tender  in  all  contracts  except  when  the  contrary  was  stipulated,  and 
also  receivable  for  customs,  taxes,  and  public  dues.  These  notes  the 
Secretary  should  redeem  in  gold  or  silver  coin  like  other  legal  ten- 
der notes.  The  'Secretary  was  required  to  coin  2,000,000  ounces  of 
the  silver  that  he  purchased  each  month,  until  July  i,  i8gi ;  after 
that  date,  only  so  much  as  might  be  necessary  to  redeem  the  notes 
issued  for  its  purchase.  The  provisions  of  the  law  of  1878  in  regard 
to  the  coinage  of  silver  were  repealed ;  but  the  law  declared  it  to  be 
the  policy  of  the  government  to  maintain  the  two  metals  upon  a  par- 
ity at  the  existing  ratio,  or  some  other  one  to  be  fixed  by  Congress. 


2o6  THE  AMERICAN  GOVERNMENT. 

365.  Acts  of  1893,  1898,  and  1900. — At  a  special  session  of  the 
Fifty-third  Congress,  convoked  to  consider  the  financial  state  of  the 
country  and  government,  an  act  was  passed  after  a  long  and  severe 
struggle,  repealing  so  much  of  the  act  of  1890  as  directed  the  Secre- 
tary of  the  Treasury  to  purchase  from  time  to  time  silver  bullion  on 
account  of  the  government.  This  act,  which  bears  date  November 
i>  1893,  declares  it  "  to  be  the  policy  of  the  United  States  to  continue 
the  use  of  both  gold  and  silver  as  standard  money,"  and  to  coin 
both  metals  into  money  of  equal  value,  such  equality  to  be  secured 
by  international  agreement  or  by  such  legislation  as  would  insure  the 
parity  of  the  coins  of  the  two  metals  at  all  times,  in  the  markets  and 
in  the  payment  of  debts. 

The  Act  of  Juxie,  1898,  authorized  and  directed  the  Secretary  of 
the  Treasury  to  coin  in  standard  silver  dollars  as  rapidly  as  the 
public  interests  might  require,  to  an  amount,  however,  of  not  less 
than  one  and  a  half  million  dollars  in  each  month,  all  of  the  silver 
bullion  then  in  the  treasury,  purchased  in  accordance  with  the  pro- 
visions of  the  Act  of  1890,  said  dollars,  when  so  coined,  to  be  used 
and  applied  in  the  manner  and  for  the  purposes  named  in  said  act. 

The  act  of  1900  declares  that  the  dollar  consisting  of  25.8  grains 
of  gold,  nine  tenths  fine,  as  established  by  law,  shall  be  the  unit  of 
value,  and  that  all  forms  of  money  issued  or  coined  by  the  United 
States  shall  be  maintained  at  a  parity  of  value  with  this  standard. 
The  act  does  not  affect  the  legal  tender  quality  of  the  silver  dollar, 
or  any  other  money  coined  or  issued  by  the  United  States,  as  pre- 
viously provided,  by  law.  Furthermore,  the  act  does  not  preclude 
the  accomplishment  of  bimetallism,  whenever  conditions  shall  make 
it  expedient  and  practicable  to  secure  the  same  by  concurrent  action 
of  the  leading  commercial  nations  of  the  world. 

366.  The  Mints. — Besides  the  mint  in  Philadelphia, 
there  are  now  other  mints  at  New  Orleans,  Carson  City, 
San  Francisco,  and  Denver.  There  are  also  assay  offices  in 
New  York,  Seattle,  Helena,  Boise,  St.  Louis,  Charlotte,  and 
Deadwood.  The  Coinage  Act  of  1873  created  the  Bureau  of 
the  Mint  in  the  Treasury  Department,  with  a  Director  at 
its  head.  Each  mint  is  managed  by  a  siiperintendent  who 
reports  to  the  Director.  The  mint  mark  on  coins  is  the 
letter  or  letters  showing  at  what  mint  they  were  struck. 
Thus,  "  S  "  San  Francisco,  "  C  C  "  Carson  City. 

367.  Gold  and  Silver  Certificates. — The  Secretary  of  the  Treas- 
ury is  directed  to  receive  deposits  of  gold  coin  in  sums  of  not  less 
than  $20  and  to  issue  gold  certificates  therefor  in  denominations  of 


THE  GENERAL  POWERS  OF  CONGRESS.  207 

not  less  than  $20,  which  coin  he  shall  retain  in  the  treasury  for  the 
payment  of  such  certificates,  and  for  no  other  purpose.  Such  certifi- 
cates are  receivable  for  customs,  taxes,  and  all  other  public  dues,  and 
when  so  received  may  be  reissued.  He  is  also  directed  to  issue  for 
silver  coin  deposited  in  the  treasury  silver  certificates  of  denomina- 
tions of  $10  and  under,  except  that  he  may,  at  his  discretion,  issue 
such  certificates  in  denominations  of  $20,  $50,  and  $100  to  an  amount 
not  exceeding  ten  per  cent  of  the  total  so  issued.  Treasury  notes 
were  issued  in  large  quantities  to  pay  for  silver  purchased  under  the 
Acts  of  1878  and  1890,  but  most  of  them  have  been  redeemed. 

368.  Banks  of  the  United  States. — In  1791  Congress 
chartered  a  Bank  of  the  United  States,  with  a  capital  of 
$10,000,000,  for  twenty  years.  The  objects  sought  were  the 
creation  of  'a  fiscal  agent  through  which  the  government 
could  transact  its  business,  that  would  purchase  a  certain 
number  and  value  of  the  pubHc  securities,  and  that  would 
loan  money  to  the  government  in  case  of  emergency,  thus 
strengthening  the  public  credit,  The  establishment  of  this 
bank  was  one  of  the  great  financial  measures  of  Alexander 
Hamilton,  then  Secretary  of  the  Treasury.  It  was  strongly 
opposed  by  the  nascent  Republican  party,  under  the  lead  of 
Jefferson.  In  181 1  adverse  influences  were  in  the  ascend- 
ant, and  the  bank's  charter  was  not  renewed.  In  1816  Con- 
gress chartered  a  second  Bank  of  the  United  States  for 
reasons  like  those  which  prevailed  in  1791,  with  a  capital 
of  $35,000,000,  also  for  twenty  years.  The  constitutional- 
ity of  both  these  banks  was  denied.  The  Supreme  Court 
affirmed  it  of  the  second  one  in  1820,^  but  in  1832  President 
Jackson  vetoed  a  bill  rechartering  it;  two  years  later  he 
directed  the  Secretary  of  the  Treasury  to  remove  the  govern- 
ment deposits  from  its  keeping ;  and  in  1836  its  charter  ex- 
pired and  was  not  renewed.  When  the  Whigs  came  into 
power  in  1841  they  passed  a  bill  through  Congress  rechar- 
tering the  bank,  but  President  Tyler  vetoed  it,  and,  after  a 
period  of  discussion,  the  subject  passed  out  of  the  public 
mind.  Both  of  these  banks  had  the  seat  of  their  operations 
at  Philadelphia,  and  both  established  branches  in  various 


*  McCulloch  V.  the  State  of  Maryland,  4  Wheaton,  316. 


2o8  THE  AMERICAN  GOVERNMENT. 

cities;   the   government   was   a   stockholder   in   both,   and 
appointed  a  certain  number  of  the  directors. 

369.  St&te  Banks. — Banks  chartered  by  States  have  ex- 
isted since  the  beginning  of  the  government,  and  many 
of  them  formerly  issued  bills  or  notes  that  circulated  as 
money.  The  constitutionality  of  State  banks  of  issue  has 
often  been  questioned;  but  in  1837  the  Supreme  Court  de- 
cided that,  so  long  as  there  is  no  attempt  to  make  these 
notes  a  legal  tender  in  payment  of  debts,  they  are  not  in 
conflict  with  the  Constitution.  In  part  the  question  is 
whether  such  notes  are  bills  of  credit  in  the  sense  of  the 
Constitution.  The  court  said :  "  If  the  legislature  of  a 
State  attempts  to  make  notes  of  any  bank  a  tender,  the  act 
will  be  unconstitutional."  ^  After  the  downfall  of  the  Bank 
of  the  United  States  in  1837,  notes  of  State  banks  formed 
for  the  most  part  the  currency  of  the  country.  Some  States 
created  good  banking  systems,  but  more  created  poor  ones. 
Only  a  minority  of  the  banks  redeemed  their  bills  in  coin, 
and  the  people  suffered  enormous  losses  from  the  partial 
or  total  worthlessness  of  bank  paper.  In  1861  the  State 
banks  numbered  1,601,  with  a  capital  of  $409,000,000; 
there  were  more  than  10,000  different  kinds  of  notes  in  cir- 
culation, issued  by  the  authority  of  34  different  States, 
under  more  than  40  different  statutes.^  In  December,  1861, 
all  banks  suspended  specie  payments. 

In  1866  Congress  imposed  a  tax  of  ten  per  cent  on  the  circula- 
tion of  State  banks ;  and,  as  they  could  not  pay  this  tax  from  the 
profits  of  their  circulation,  they  were  compelled  to  retire  from  busi- 
ness as  banks  of  circulation,  or  to  reorganize  as  national  banks. 
The  Supreme  Court  has  affirmed  the  constitutionality  of  the  tax.' 

370.  First  Fiscal  Agents  of  the  Go\;emmentw — The  government 
employed  the  Banks  of  the  United  States  as  fiscal  agents,  depositing 
its  funds  in  them  and  drawing  out  its  funds  on  warrants  as  they 
were  needed.  The  charters  of  both  banks  compelled  the  government 
to  receive  their  notes  in  payment  for  debts  due  to  the  treasury  as  long 


*  Briscoe  V.  the  Bank  of  the  Commonwealth  of  Kentucky,  1 1  Peters,  357. 

*  Knox,  "  Banking,"  in  Lalor's  Cyclopadia. 

*  Veazie  Bank  v.  Fenno,  8  Wallace,  533. 


THE  GENERAL  POWERS  OF  CONGRESS.  209 

as  they  were  paid  in  coin.  In  the  interval  between  the  two  banks, 
1811-1817,  the  government  used  the  State  banks  as  depositories,  and 
again  resorted  to  them  in  1834  when  the  Secretary  of  the  Treasury 
withdrew  the  deposits  from  the  Bank  of  the  United  States.  All  this 
time  the  government  had  no  proper  treasury,  but  conducted  its  mon- 
etary operations  through  the  banks. 

371.  The  Independent  Treasury. — On  July  4,  1840,  President 
Van  Buren  signed  an  act  which  created  what  is  known  in  our  history 
as  the  subtreasury  system.  This  act  provided  that  rooms,  vaults 
and  safes  should  be  built  for  the  keeping  of  the  public  funds,  that 
assistant  treasurers  should  be  appointed  in  four  principal  cities,  that 
the  mint  and  branch  mints  should  be  places  of  deposit,  and  that  after 
June  30,  1842,  all  payments  made  by  or  to  the  government  should 
be  made  in  gold  and  silver  coin.  This  legislation  was  repealed  in 
1841,  but  was  reenacted  in  1846,  and,  with  modifications,  has  con- 
tinued in  force  until  the  present  time.  Besides  the  treasury  in  the 
Treasury  Building  at  Washington,  there  are  now  subtreasuries  in 
New  York,  Boston,  Philadelphia,  Baltimore,  Cincinnati,  Chicago, 
St.  Louis,  San  Francisco,  and  New  Orleans. 

372.  Creation  of  the  National  Banking  System. — The 
burdens  of  war  at  length  compelled  Congress  to  use  the 
power  delegated  to  it  to  regulate  banks  of  issue  on  a  na- 
tional scale.  By  two  acts,  bearing  the. dates  February  25, 
1863,  and  June  3,  1864,  it  created  a  system  of  national 
banks,  which,  with  numerous  modifications,  is  still  in  oper- 
ation. The  objects  sought  in  the  new  system  were  to  pro- 
vide a  uniform  national  currency  for  the  country  that  should 
be  convertible  into  legal  money,  to  make  a  market  for  the 
national  securities,  and  to  create  fiscal  agents  that  would 
at  once  assist  the  government  in  the  transaction  of  fiscal 
business  and  also  strengthen  the  public  credit.  All  of 
these  objects  the  new  system  accomplished.  It  is  impos- 
sible to  give,  even  in  outline,  the  history  of  the  national 
banking  system,  but  its  principal  features,  as  the  system 
was  left  by  the  Act  of  March  14,  1900;  will  be  described. 

373.  Features  of  the  National  Banks. — The  law  creates 
in  the  Treasury  Department  in  Washington  an  office  called 
the  Office  of  the  Comptroller  of  the  Currency,  and  places 
the  general  supervision  of  the  whole  system  in  the  hands 
of  the  incumbent.     The  banks  are  required  to  redeem  their 

AU.    GOV. — 14. 


210  THE  AMERICAN  GOVERNMENT. 

notes  in  legal  money  on  presentation  at  their  own  counters, 
and  also  to  maintain  a  fund  for  their  redemption  by  the 
United  States  treasury ;  and  to  secure  such  redemption, 
thus  protecting  the  note-holder  against  all  possible  loss, 
they  must  deposit  in  the  office  of  the  Comptroller  of  the 
Currency,  in  pledge  for  the  circulation,  bonds  Of  the  na- 
tional government.  The  comptroller  prints  the  notes  in 
blank,  in  denominations  of  $5  and  upwards,  and  delivers 
them  to  the  banks  in  amount  equal  to  the  par  value  of  the 
bonds  so  deposited ;  but  he  is  authorized  to  require  of  the 
banks  additional  deposits  of  bonds  or  lawful  money  in  case 
the  market  value  of  the  bonds  held  by  him  shall  fall  below 
the  par  value  of  the  circulating  notes  outstanding  at  any 
time.  He  shall  not  deliver  to  any  bank  such  blank  notes  in 
excess  of  the  amount  of  its  capital  stock  actually  paid  in,  and 
no  bank  shall  receive  or  put  in  circulation  more  than  one 
third  in  amount  of  its  circulating  notes  of  the  denomination 
of  $5.  When  a  bank's  circulation  is  secured  by  a  deposit 
of  two  per  cent  bonds,  it  is  subject  to  a  tax  of  one  fourth  of 
one  per  cent,  and  when  by  a  deposit  of  bonds  bearing  a 
higher  rate  of  interest,  to  a  tax  of  one  half  of  one  pcF  cent  on 
its  circulation  payable  semi-annually;  such  tax  being  in- 
tended to  pay  the  cost  of  printing  the  notes  and  other  ex- 
penses incurred  on  account  of  the  bank  business  by  the 
treasury.  With  the  approval  of  the  Secretary  of  the  Treas- 
ury, banks  with  a  capital  of  not  less  than  $25,000  may  be 
organized  in  places  having  not  more  than  3,000  inhabitants, 
and  with  a  capital  of  not  less  than  $50,000  in  places  with 
not  more  than  6,000  inhabitants.  With  these  exceptions,  no 
national  bank  shall  be  organized  with  a  capital  of  less  than 
$100,000,  while  in  cities  of  more  than  50,000  inhabitants  a 
capital  of  not  less  than  $200,000  is  required.  Still  more, 
the  government  itself  practically  guarantees  the  circulation 
of  the  banks,  and  receives  their  notes  in  payment  of  all  debts 
due  to  the  treasury  except  customs  duties.  There  is  a  spe- 
cial corps  of  national  bank  examiners  who  examine  the 
banks  at  stated  times  and  on  special  Occasions.     At  one  time 


THE  GENERAL  POWERS  OF  CONGRESS.  2II 

the  aggregate  national  bank  note  capital  was  limited  to 
$354,cx50,ooo,  which  was  divided  among  the  States  and  Ter- 
ritories according  to  their  wealth  and  population ;  but  this 
restriction  was  long  ago  removed.  The  banks  may  charge 
the  rate  of  interest  that  is  legal  in  the  State  where  they 
exist  and  do  business.  They  are  used  by  the  government 
to  some  extent  as  depositories  of  government  funds,  and 
they  have  acted  as  agents  for  other  fiscal  purposes,  such  as 
selling  government  bonds. 

On  September  9,.  1903,  there  were  in  existence  5,042  national  banks, 
having  an  aggregate  capital  paid  in  of  $753,722,658.  The  individual 
deposits  in  these  banks  were  $3,156,333,499,  their  loans  and  discounts 
$3,481,446,772,  and  their  outstanding  notes  $375,037,815.  From  the 
organization  of  the  system  to  the  date  given  about  400  banks  had 
failed,  but  no  bill-holder  has  ever  lost  a  penny  in  consequence. 

On  June  I,  1904,  the  general  stock  of  money  was  as  follows : 

Gold  coin,  including  bullion  in  the  treasury. ..  .$1,313,120,868 

Standard    silver    dollars 559,422,410 

Subsidiary    silver    coin 106,614,930 

Treasury  notes  of   1890 13,473.000 

United    States    notes 346,681,016 

National    Bank    notes 445,988,565 

Total    $  2,785,300,789 

The  money  in  actual  circulation  was  $2,509,279,917.  Estimating 
the  population  at  81,752,000,  we  have  an  average  circulation  of  $30.69 
per  capita.  -* 

'  III.    Commerce. 

Section  8,  Clause  3. —  To  regulate  commerce  with  foreigfn  nations, 
and  among  the  several  States,  and  with  the  Indian  tribes. 

374.  Power  to  Regulate  Commerce. — Without  this 
clause,  the  Constitution  never  could  have  been  ratified,  or 
even  framed.  The  Constitution  was  "  the  child  of  press- 
ing commercial  necessity;  unity  and  identity  of  commerce 
was  its  seminal  principle  >"  "  in  matters  of  trade,  we  were 
no  longer  to  be  European,  Virginia,  Pennsylvania,  or  Massa- 
chusetts men ;  we  were  to  have  but  one  commerce,  and 
that  the  commerce  of  the  United  States."  No  clause  of 
the  Constitution  has  more  fully  justified  the  expectations  of 
its  authors. 


212  THE  AMERICAN  GOVERNMENT. 

"  In  the  practice  of  the  government  the  commercial  power  has 
been  applied  to  embargoes,  non-intercourse,  navigation,  importation, 
coasting  trade,  fisheries,  seamen,  privileges  of  American  and  foreign 
ships,  quarantine,  pilotage,  wrecks,  lighthouses,  buoys,  beacons;  ob- 
structions in  bays,  sounds,  rivers,  and  creeks,  inrpads  of  the  ocean, 
and  many  other  kindred  subjects;  and  doubtless  includes  salvage, 
policies  of  insurance,  bills  of  exchange,  and  all  maritime  contracts, 
and  the  designation  of  ports  of  entry  and  delivery."  * 

375.  The  Embargo  and  Non-Importation  Acts. — Early 
in  the  nineteenth  century  the  United  States  were  involved  in 
difficulties  with  England  and  France.  To  bring  England 
to  terms,  an  act  forbidding  the  importation  of  certain  goods 
from  England  and  her  colonies  was  enacted  in  1806.  This 
proving  ineffectual,  an  embargo  was  laid  in  1807  on  all 
vessels  bound  to  a  foreign  port,  within  the  jurisdiction  of 
the  United  States,  thus  confining  them,  after  the  act  took 
effect,  to  the  ports  where  they  lay  until  the  embargo  should 
be  raised.  This  act  was  repealed  in  1809,  and  a  non-im- 
portation act  forbidding  commercial  intercourse  with  Great 
Britain  and  France  was  enacted.  Still  later  there  was  other 
similar  legislation. 

The  assumption  on  which  these  acts  rested  was  that  American 
trade  was  so  valuable  to  those  countries  that,  rather  than  lose  it, 
they  would  yield  to  our  demands.  But  this  they  did  not  do.  The 
Embargo  Act  was  opposed  by  the  commercial  classes  generally,  and 
particularly  by  New  England.  They  said  a  perpetual  embargo  de- 
stroyed commerce,  and  asked  whether  a  power  to  regulate  was  a 
power  to  destroy.  The  issue  was  carried  to  the  Supreme  Court, 
where  the  act  was  declared  constitutional." 

376.  The  Interstate  Commerce  Commission. — The  ex- 
tension over  the  country  of  the  present  gigantic  transpor- 
tation system  for  passengers  and  freight,  was  followed  by 
serious  evils.  To  remedy  some  of  these  evils,  Congress 
passed  an  act  entitled,  "  An  acfr  to  Regulate  Commerce," 
approved  Feb.  4,  1887.  Some  of  the  principal  ends  to  be 
accomplished  were  these:  to  prevent  unfair  discrimination 
in  the  transportation  facilities  offered  to  persons  and  places ; 

*  Farrar,  Manual  of  the  Constitution,  p.  328. 
'  Gibbons  v.  Ogden,  9  Wheaton,   i. 


THE  GENERAL  POWERS  OF  CONGRESS.  213 

to  prevent  the  giving  of  passes  to  persons  supposed  to  pos- 
sess influence  valuable  to  the  railroad§ ;  to  prevent  unfair 
discrimination  in  passenger  fares  as  between  different 
places,  and  in  freight  charges,  either  in  the  form  of  special 
rates  or  in  the  form  of  rebates,  and  to  require  all  charges 
to  be  an  open  and  public  matter.  The  law  created  the  Inter- 
state Commerce  Commission,  charging  it  with  the  duty 
of  enforcing  the  provisions  of  the  law.  The  members  of 
this  commission  are  appointed  by  the  President  and  the 
Senate,  and  receive  salaries  of  $7,500  each.  The  principal 
office  of  the  commission  is  in  Washington,  where  most  of  its 
sessions  are  held. 

377.  Anti-Trust  Act. — An  act  was  approved  July  2, 
1890,  the  purpose  of  which  was  to  protect  trade  and  com- 
merce against  unlawful  restraints  and  monopolies,  which  is 
popularly  known  as  the  Anti-Trust  Act.  It  declares  every 
contract,  combination  in  the  form  of  trust  or  otherwise,  or 
conspiracy,  in  restraint  of  trade  or  commerce  among  the 
several  States,  or  with  foreign  nations,  illegal.  Persons 
entering  into  such  contracts,  or  engaged  in  such  combina- 
tions, are  pronounced  guilty  of  a  misdemeanor,  and  on  con- 
viction thereof  are  made  amenable  to  punishment  by  fine  and 
imprisonment.  Persons  monopolizing  or  attempting  to  mo- 
nopolize, combining  or  conspiring  with  any  other  person 
or  persons  to  monopolize,  any  part  of  the  trade  or  commerce 
among  the  several  States  or  with  foreign  nations,  are  de- 
clared guilty  of  the  same  offense  and  subject  to  the  same 
penalties.  The  word  person  or  persons  here  includes  cor- 
porations and  associations  existing  under  law,  whether  for- 
eign or  domestic,  State  or  National.  The  Circuit  Courts 
are  vested  with  jurisdiction  over  such  cases.  As  in  the  case 
of  the  Interstate  Commerce  Act,  nothing  is  said  about  com- 
merce that  is  carried  on  exclusively  within  a  State. 

In  1903  Congress  created  the  Bureau  of  Corporations  and  gave  it 
power  to  investigate  the  organization  and  working  of  any  trust  or 
corporation  engaged  in  interstate  or  foreign  commerce,  except  trans- 
portation companies. 


214  THE  AMERICAN  GOVERNMENT. 

378.  The  Original-Package  Decision. — Some  of  the  States  hav- 
ing passed  laws  prohibiting  the  sale  of  intoxicating  liquors,  save  for 
certain  specified  purpo'ses,  as  mechanical  and  medicinal  -uses,  the 
Supreme  Court  held,  April  28,  1890,  in  a  decision*  that  is  popularly 
known  as  the  original-package  decision,  that  such  laws  are  uncon- 
stitutional, null,  and  void  in  so  far  as  they  apply  to  the  sale  by  an 
importer,  in  the  original  packages  or  kegs,  unbroken  and  unopened, 
of  such  liquors  manufactured  in  and  brought  from  any  other  State. 
This  decision  was  based  on  the  ground  that  such  laws  in  this  fea- 
ture are  repugnant  to  the  clause  of  the  Constitution  granting  to 
Congress  the  power  to  regulate  commerce  among  the  States. 

To  meet  this  decision.  Congress  enacted  a  law  providing  that  all 
fermented,  distilled,  or  other  intoxicating  liquors  or  liquids  trans- 
ported into  any  State  or  Territory,  or  remaining  for  use,  consump- 
tion, sale,  or  storage  therein,  shall,  upon  arrival,  be  subject  to 
the  operation  and  effect  of  the  laws  of  such  State  or  Territory  en- 
acted in  the  exercise  of  its  police  powers,  to  the  same  extent,  and  in 
the  same  manner,  as  though  such  liquids  and  liquors  had  been  pro- 
duced in  it,  and  shall  not  be  exempt  therefrom  by  reason  of  being 
introduced  therein  in  original  packages  or  otherwise.  This  law  the 
court  has  since  pronounced  constitutional,  and  the  court  also  held 
that  it  is  not  necessary  for  the  States  to  reenact  the  laws  already 
upon  their  statute  books.^ 

379.  Police  Power  of  the  States. — The  last  three  topics,  and 
particularly  the  matter  of  original  packages,  touch  a  constitutional 
question  of  great  practical  interest.  While  the  power  of  Congress 
over  commerce  between  the  States  is  unlimited,  it  has  no  such  power 
whatever  within  the  States;  there  the  State  jurisdiction  is  supreme. 
Moreover,  the  State  exercises  the  power  known  as  public  police,  by 
which  it  seeks  "  to  preserve  public  order,  and  to  prevent  offenses 
against  the  State  " ;  "  to  establish  for  the  intercourse  of  citizens  with 
citizens  those  rules  of  good  manners  and  good  neighborhood  which 
are  calculated  to  prevent  a  conflict  of  rights,  and  to  insure  to  each 
the  uninterrupted  enjoyment  of  his  own,  so  far  as  it  is  reasonably 
consistent  with  a  like  enjoyment  of  rights  by  others.'"  Naturally, 
in  a  society  of  such  great  extent  as  the  United  States,  which  is 
constantly  increasing  in  complexity  of  interests  growing  out  of  mul- 
tiplying social  relations,  it  is  found  difficult  to  adjust  interstate  com- 
merce both  to  State  commerce  and  to  the  necessities  of  public  police. 
The  topic  will  be  touched  upon  again  in  dealing  with  State  inspec- 
tion laws;  but  it  should  be  remarked  in  this  place  that  to  adjust  the 

*  Leisy  v.  Harden,  113  U.   S.,  100.  1 

•  Cooley,  Constitutional  Limitations,  p.   704.  / 
*In  re  Rahrer,  petitioner,  140  U.  S.,  S4S-  \ 


THE  GENERAL  POWERS  OF  CONGRESS.  215 

delicate  controversies  arising  between  the  National  authority  and 
the  State  authority,  has  severely  taxed  the  powers  both  of  Congress 
and  of  the  courts. 

380.  Navigation  and  Tonnage. — Of  the  many  regulations  con- 
cerning navigation  and  tonnage  enacted  by  Congress,  a  few  only 
need  be  noted:  (i)  No  American  citizen  can,  by  purchasing  a  for- 
eign-built ship,  make  her  an  American  ship,  entitled  to  carry  the 
flag  of  the  country;  (2)  an  American  ship  ceases  to  be  American  if 
owned,  in  whole  or  in  part,  by  a  citizen,  native-born  or  naturalized, 
who  usually  resides  abroad,  unless  he  be  a  consul  or  a  representa- 
tive of  an  American  mercantile  house;  (3)  no  ship  can  be  regis- 
tered as  an  American  vessel  of  which  a  foreigner  owns  any  part; 

(4)  no  vessel  owned,  in  whole  or  in  part,  by  citizens  of  foreign 
countries  can  engage  in  the  carrying  trade  between  American  ports ; 

(5)  every  vessel  arriving  at  an  American  port  from  a  foreign  coun- 
try (with  some  exceptions)  must  pay  a  tonnage  tax  of  three  or  six 
cents  a  ton  on  her  carrying  capacity. 

IV.    Naturalization  and  Bankruptcy. 

Section  8,  Clause  4. — To  establish  an  uniform  rule  of  naturaliza- 
tion, and  uniform  laws  on  the  subject  of  bankruptcies  throughout 
the  United  States. 

Amendment  XIV.,  Section  i. — All  persons  born  or  naturalized 
in  the  United  States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  State  wherein  they  re- 
side.   .    .    . 

381.  Terms  Defined. — Citizenship  is  membership  in  the 
body  politic  or  state;  a  person  possessing  it  is  bound  to 
allegiance  and  is  entitled  to  protection.  Naturalization  is 
an  act  by  which  the  rights,  privileges,  and  duties  of  the 
citizen  are  conferred  upon  a  foreigner  or  alien. 

Naturalization  is  of  two  kinds,  collective  and  personal.  One 
mode  of  collective  naturalization  is  seen  in  our  annexations  of  for- 
eign territory.  In  these  cases,  prior  to  1898,  all  inhabitants  of  the 
territories  annexed  who  desired  to  become  such,  excluding  the  na- 
tive races,  were  constituted  American  citizens.  Again,  Amendment 
XIV.  naturalized  the  slaves  as  a  body.  Personal  or  individual  nat- 
uralization is  sufficiently  explained  by  the  terms  themselves.  The 
Constitution  is  silent  concerning  collective  naturalization ;  that 
power  belongs  to  the  nation  as  a  sovereign  state. 

382.  State  Control. — The  naturalization  policy  that  England 
had  pursued  in  the  colonies  was  very  illiberal,  and  their  growth  by 
immigration  was  retarded  in  consequence.    So  thev  passed  natural- 


2i6  THE  AMERICAN  GOVERNMENT. 

ization  laws  of  their  own.  One  of  the  charges  made  against  George 
III.  in  the  Declaration  of  Independence  was  that  he  had  endeavored 
to  prevent  the  population  of  the  States,  and  for  that  purpose  had  ob- 
structed their  naturalization  laws  and  refused  to  pass  others  to  en- 
courage immigration.  With  independence,  the  undisputed  control 
of  the  subject  passed  into  the  hands  of  the  States.  The  only  case  in 
which  the  Old  Congress  appears  to  have  touched  it,  was  in  June, 
1776,  when  it  said :  "  ITiat  persons  abiding  in  any  of  the  United 
Colonies,  and  desiring  protection  from  the  laws  of  the  same,  owe 
allegiance  to  the  said  laws,  and  are  members  of  such  colony."  The 
Articles  of  Confederation  made  the  citizens  of  one  State  the  citi- 
zens of  all  the  States.  This  was  wise,  but  the  different  States  made 
different  rules  of  naturalization,  and  this  led  to  confusion  and  diffi- 
culties that  continually  increased.  Hence  the  full  control  of  nat- 
uralization was  given  to  Congress. 

383.  Naturalization  Laws. — The  naturalization  policy 
of  the  colonies,  and  afterwards  of  the  States,  was  lib- 
eral. They  invited  foreigners  to  come  and  improve  their 
boundless  resources.  In  1790  Congress  enacted  a  natural- 
ization law;  and  since  then  twenty  or  more  laws  relating 
to  the  subject  have  been  passed,  most  of  them  of  a  liberal 
character.  The  period  of  residence  necessary  to  naturaliza- 
tion was  made  two  years  in  1790,  five  years  in  1795,  and 
fourteen  years  in  1798.     Since  1802  it  has  been  five  years. 

384.  Process  of  Naturalization. — The  steps  to  be  taken 
by  an  alien  in  order  to  become  a  citizen  of  the  United  States 
are  these: 

1.  At  least  two  years  before  his  admission  to  citizen- 
ship, the  applicant  must  declare  on  oath,  before  some  court 
of  record  having  the  necessary  jurisdiction,  that  it  is  his 
bona  fide  intention  to  become  a  citizen.  The  clerk  of  the 
court  records  this  declaration,  and  gives  him  a  certificate 
stating  that  it  has  been  made. 

2.  After  the  expiration  of  the  two  years,  the  applicant 
must  prove  to  a  court  having  competent  jurisdiction,  by  one 
or  more  witnesses,  that  he  has  resided  in  the  United  States 
at  least  five  years,  and  in  the  State  or  Territory  where  the 
court  is  held  at  least  one  year;  that  he  has  behaved  as  a 
man  of  good  moral  character,  is  attached  to  the  principles 


THE  GENERAL  POWERS  OF  CONGRESS.  217 

of  the  Constitution  of  the  United  States,  and  is  well  dis- 
posed to  the  good  order  and  happiness  of  the  same. 

3.  He  must  swear  that  he  will  support  the  Constitu- 
tion, and  that  he  absolutely  renounces  all  allegiance  to  any 
foreign  prince  or  state,  and  particularly  the  one  of  which 
he  was  a  subject,  and  also  any  title  of  nobility  that  he  may 
have  held. 

4.  Record  is  made  of  these  proceedings,  and  the  appli- 
cant receives  a  certificate  stating  that  he  has  complied  with 
the  demands  of  the  law,  and  is  a  citizen  of  the  United 
States.  His  wife  and  children  under  twenty-one  years  of 
age  also  become  citizens.  If  a  man  die  after  having  made 
his  declaration  and  before  his  naturalization  is  completed, 
his  widow  and  minor  children  can  become  citizens  on  taking 
the  necessary  oaths. 

Previous  to  1870,  only  white  persons  could  be  naturalized.  An 
act  of  that  year  extended  the  privilege  to  aliens  of  African  nativity 
and  persons  of  African  descent.  A  more  recent  law  denies  natural- 
ization to  the  Chinese,  Japanese,  and  others  of  the  Mongolian  race- 
group.  Only  free  white  persons  and  African  negroes  are  admitted 
to  naturalization  in  the  United  States. 

385.  States  May  Confer  Political  Rights. — At  first  some  of  the 
States  supposed  that  they  had  concurrent  jurisdiction  with  Congress 
over  naturalization,  but  in  1817  the  Supreme  Court  decided  that  the 
jurisdiction  of  Congress  is  exclusive.^  But  while  a  State  cannot 
make  an  alien  a  citizen,  it  can  grant  him  civil  and  political  rights 
within  its  own  jurisdiction  that  do  not  conflict  with  the  National 
laws.  This  many  of  the  States,  and  particularly  the  new  ones,  do; 
by  allowing  aliens  to  own  land,  to  vote,  etc.,  such  States  have 
greatly  promoted  their  settlement  and  growth.* 


•  Chirac  v.  Chirac,  2  Wheaton,  259. 

•  The  question,  Can  a  man  renounce  his  allegiance  to  the  state  of  which  he 
is  born  a  subject  or  citizen?  has  often  disturbed  the  relations  of  the  United 
States  with  other  powers.  Formerly  nations  did  not  admit  the  right  of  expatria- 
tion, at  least  without  the  consent  of  the  sovereign.  Once  a  subject,  always  a 
subject.  The  assertion  of  this  claim  by  England  in  impressing  naturalized 
American  seamen,  once  British  subjects,  was  the  principal  cause  of  the  war  of 
181 2.  In  1868  Congress  declared  that  expatriation  is  a  "natural  and  inherent 
right  of  all  people,  indispensable  to  t"he  enjoyment  of  the  rights  of  life,  liberty, 
and  the  pursuit  of  happiness."  and  this  doctrine  is  now  pretty  generally  re- 
ceived. England  finally  conceded  the  principle  in  a  treaty  with  the  United 
States  entered  into  in   1870. 


2l8  THE  AMERICAN  GOVERNMENT. 

386.  Bankruptcies. — Just  what  the  Federal  Convention 
meant  by  laws  on  the  subject  of  bankruptcies,  has  been 
disputed.  The  commonly  received  view  is  that  an  insolvent 
person,  or  one  unable  to  pay  his  debts,  is  a  bankrupt,  and 
that  a  law  dividing  his  property  proportionally  among  his 
creditors  and  discharging  him  from  legal  obligation  to  make 
further  payment  is  a  bankrupt  law.^  Congress  has  passed 
four  such  laws.  The  first  one  was  in  force  from  1800  to 
1803;  the  second,  from  1841  to  1843;  the  third,  from  1867 
to  1878;  the  fourth  was  enacted  in  1898,  and  is  now  in 
force.  The  later  laws  have  recognized  voluntary  and  in- 
voluntary bankruptcy.  At  present,  any  person  who  owes 
debts,  except  a  corporation,  is  entitled  to  the  benefit  of  the 
act  as  a  voluntary  bankrupt;  while  any  natural  person 
owing  debts  to  the  amount  of  $1,000,  with  a  few  exceptions, 
may  be  adjudged  an  involuntary  bankrupt.  The  District 
Courts  of  the  United  States,  in  the  several  States  and  Ter- 
ritories, administer  the  law  as  courts  in  bankruptcy  through 
referees  whom  they  appoint  for  the  purpose. 

The  States  may  enact  insolvent  laws  that  have  somewhat  the  same 
effect  as  bankrupt  laws.  These  laws  are  limited  in  their  operation 
to  the  State  making  them,  and  they  are  always  subordinate  to  the 
national  bankrupt  law,  if  there  be  one  in  force.  Insolvent  laws 
never  apply  to  debts  existing  when  they  are  passed,  but  are  always 
prospective  in  their  operation.  This  is  because  a  State  cannot  pass 
a  law  impairing  the  obligation  of  contracts.  This  rule  does  not 
apply  to  Congress,  and  the  four  bankrupt  laws  that  it  has  enacted 
have  been  retroactive.' 

V.    Weights  and  Measures. 

Section  '8,  Clause  5. — To  coin  money,  regulate  the  value  thereof, 
and  of  foreign  coin,  and  fix  the  standard  of  weights  and  measures. 

'  See  Sturgis  v.   Crownlnshield,  4  Wheaton,   122. 

*  It  is  generally  held  in  commercial  societies,  and  especially  after  commer- 
cial crises,  that  judiciously  framed  bankrupt  laws  are  useful.  They  clear  the 
channels  of  commerce  of  wrecks.  The  discharged  bankrupt  is  still  under  moral 
obligation,  if  possible,  to  pay  his  debts  in  full.  In  the  nature  of  the  case, 
bankrupt  laws  are  very  liable  to  abuse;  still  most  European  countries  have  per- 
manent ones  that  are  far  more  stringent  than  ours  have  ever  been.  It  has  been 
strongly  urged  that  a  system  of  such  laws  should  be  a  permanent  part  of  the 
national  legislation. 


THE  GENERAL  POWERS  OF  CONGRESS.  219 

387.  Value  of  Uniformity. — Uniformity  of  weights  and 
measures  is  only  less  important  than  uniformity  o'f  money, 
and  the  Federal  Convention  wisely  committed  it  to  the  same 
authority.  Still,  although  President  Washington  urged  the 
subject  upon  the  attention  of  the  First  Congress,  and  John 
Quincy  Adams,  as  Secretary  of  State,  discussed  it  in  an 
elaborate  report  in  1821,  Congress  was  very  slow  to  exercise 
the  power  that  this  clause  confers. 

The  colonies  used  the  English  weights  and  measures,  but  in  time 
divergences  appeared.  Mr.  Adams  reported  that,  in  1821,  considera- 
ble discrepancies  existed  in  the  customhouses  within  the  several 
States,  and  often  in  the  same  State,  in  all  measures  of  weight  and 
capacity.  In  1828  Congress  made  the  English  brass  troy  pound  the 
standard  troy  pound  at  the  national  mint.  Afterwards  accurate 
copies  of  the  received  standards  of  weights  and  measures  were  sup- 
plied to  the  various  customhouses.  In  1836  Congress  directed  the 
Secretary  of  the  Treasury  to  deliver  a  complete  set  of  all  the  weights 
and  measures  adopted  as  standards  to  the  governors  of  the  several 
States  for  the  use  of  the  States.  The  other  standards,  the  imperial 
yard,  36  inches,  the  imperial  avoirdupois  pound,  7,000  grains,  and 
the  wine  gallon,  231  cubic  inches,  have  never  been  adopted  by  statute 
but  rest  upon  use  and  tradition.  The  power  given  to  Congress  in 
the  case  of  weights  and  measures  is  not,  as  in  the  case  of  money, 
forbidden  to  the  States.  When  States  have  legislated  on  the  sub- 
ject, they  have  adopted  the  National  standards.  In  1866  Congress 
legalized  the  metric  system,  and  in  1873  and  in  1876  it  voted  money 
for  furnishing  metric  standards  for  the  States.  In  1866  the  Post- 
master-General was  directed  to  furnish  metric  balances  to  postoffices 
exchanging  mails  with  foreign  countries.  In  1901  Congress  passed 
an  act  to  establish  a  National  Bureau  of  Standards. 

VI.    Counterfeiting. 

Section  8,  Clause  6. —  To  provide  for  the  punishment  of  counter- 
feiting the  securities  and  current  coin  of  the  United  States. 

388.  Need  of  the  Power  to  Punish  Counterfeiting. — 

The  States,  if  they  wish,  may  punish  co.unterfeiting  the 
National  securities  and  coin.  In  the  case  of  coin,  the  Su- 
preme Court  has  distinctly  affirmed  that  they  have  the 
right.^  But,  manifestly,  it  would  not  answer  to  trust  solely 
to  them.     The  securities  and  coin  are  national  instruments 


»  The  U.  S.  V.  Marigold,  9  Howard  560. 


220  THE  AMERICAN  GC7VERNMENT. 

of  government ;  and,  if  the  nation  is  going  to  protect  its  in- 
struments of  government,  without  which  it  would  not  be  a 
nation,  it  must  protect  them. 

389.  Counterfeiting  Defined. — The  word  counterfeiting 
is  used  in  a  general  and  in  a  special  sense.  In  the  Consti- 
tution, according  to  Professor  Pomeroy,  "  it  embraces  not 
only  the  manufacture  of  forged  coins  and  securities  [or 
counterfeiting  proper],  but  the  uttering  them  when  made, 
and  the  having  them  in  possession  with  intent  to  utter  them. 
Congress  may,  therefore,  pass  laws  determining  each  of 
these  three  grades  of  crime, — the  manufacture,  the  putting 
into  circulation,  and  the  having  in  possession  with  the  intent 
to  put  into  circulation ;  and  may  fix  such  penalties  and  pun- 
ishments to  each  offense  as  it  deems  expedient."  ^ 

390.  Punishment  of  Counterfeiting. — ^Any  person 
guilty  of  any  one  of  these  crimes  in  respect  to  gold  or  silver 
coins,  or  bars  stamped  or  coined  at  the  mints  and  assay 
offices  of  the  United  States,  is  punishable  by  a  fine  of  not 
more  than  $5,000,  and  by  imprisonment  at  hard  labor  for 
not  more  than  ten  years.  "  Obligation,"  or  "  security," 
the  law  declares  to  mean  "  all  bonds,  certificates  of  indebt- 
edness, national  currency,  certificates  of  deposit,  bills, 
checks,  or  drafts  for  money  drawn  by  or  upon  authorized 
officers  of  the  United  States,  stamps,  and  other  representa- 
tives of  value,  of  whatever  denomination,  which  have  been, 
or  may  be,  issued  under  any  act  of  Congress."  Counter- 
feiting the  notes  of  the  national  banks,  and  passing  or  at- 
tempting to  pass  such  notes  with  a  knowledge  that  they 
are  spurious,  is  forbidden  under  a  penalty  of  not  less  than 
five  nor  more  than  fifteen  years'  imprisonment,  and  a  fine 
of  not  more  than  $5,000.  Minor  coins,  letters-patent,  cer- 
tificates of  entry  at  the  customhouse,  land  warrants,  money 
orders,  postal  cards,  and  stamped  envelopes  are  also  pro- 
tected. Counterfeiting  within  the  United  States  the  coin, 
notes,  bonds,  etc,  of  foreign  governments  is  also  prohibited 
under  severe  penalties. 

•  Constitutional  Law,  p.  358. 


THE  GENERAL  POWERS  OF  CONGRESS.  221 

VII.    Post  Offices. 
Section  8,  Clause  7. —  To  establish  post  offices  and  post  roads. 

391.  General  Post  Office. — The  Articles  of  Confedera- 
tion gave  to  Congress  the  right  to  regulate  the  post  office 
from  one  State  to  another,  and  the  Constitution  gave  it 
power  over  the  whole  subject.  In  fact,  this  is  a  function 
that  the  States  did  not  at  any  time  claim.  It  has  often 
been  proposed  that  the  national  government  should  assume 
control  of  the  telegraphs  as  well  as  the  mails,  as  has  been 
done  by  most  of  the  governments  of  Europe. 

392.  Kinds  of  Post  Offices. — Post  offices  are  divided 
into  four  classes ;  the  first  three  include  those  whose  incum- 
bents receive  a  compensation  of  $1,000  or  more  a  year,  and 
the  fourth  those  whose  incumbents  receive  less  than  that 
amount.  The  incumbents  of  the  first  three  classes,  some- 
times called  presidential  postmasters  because  they  are 
appointed  by  the  President  and  Senate,  receive  regular  sal- 
aries ranging  from  one  to  six  thousand  dollars.  Fourth- 
class  postmasters  are  appointed  by  the  Postmaster-General, 
and  receive  a  percentage  on  the  income  of  the  office.  Presi- 
dential postmasters  are  appointed  for  four  years ;  the  others 
hold  their  offices  at  the  pleasure  of  the  Postmaster-General. 
Offices  are  divided  into  these  classes  with  reference  to  their 
incomes. 

393.  Miscellaneous  Provisions. — To  insure  the  greater  security 
of  valuable  letters,  the  department  registers  them  and  gives  special 
attention  to  their  transfer,  charging  a  fee  of  eight  cents  therefor. 
The  law  authorizes  the  Postmaster-General  to  establish  a  system  of 
free  mail  delivery  in  towns  with  an  annual  gross  postal  revenue  of 
$10,000.  Provision  is  made  for  the  immediate  delivery  of  letters  in 
towns  of  4,000  inhabitants  and  upwards,  if  they  bear  a  special  ten- 
cent  stamp.  Mail  is  also  delivered  on  many  thousands  of  rural 
free  delivery  routes.  There  are  four  classes  of  domestic  mail^  mat- 
ter, bearing  different  rates  of  postage. 

1.  Letters,  postal  cards,  and  other  written  matter,  and  all  matter 
closed  to  inspection.  The  rate,  save  on  postal  cards  and  drop  letters 
mailed  at  non-delivery  offices,  which  is  one  cent  each,  is  two  cents 
an  ounce  or  fraction  of  an  ounce. 

2.  Periodicals,    magazines,    etc.    When    sent    from    a    registered 


222  THE  AMERICAN  GOVERNMENT. 

publishing  office,  or  a  news  agency,  the  rate  pn  this  class  of  matter 
is  one  cent  a  pound ;  otherwise  one  cent  for  every  four  ounces. 

3.  Books,  author's  copy  accompanying  proof  sheets,  etc.,  are 
charged  one  cent  for  two  ounces  or  fraction  of  the  same. 

4.  Merchandise  is  charged  one  cent  an  ounce. 

Money  orders  are  procurable  on  the  payment  of  a  small  fee  at 
the  more  important  post  offices. 

Previous  to  1873  the  Presideilt,  Vice  President,  heads  of  depart- 
ments, Senators,  and  Representatives  enjoyed  the  privilege  of  receiv- 
ing and  sending  mail  matter  free.  In  that  year  this  privilege,  called 
the  franking  privilege,  was  abolished ;  but  it  was  partly  restored  by 
later  acts.  Since  1877  the  Departments  have  sent  letters  and  pack- 
ages relating  to  government  business  free,  and  since  1895  members 
of  Congress  have  had  the  same  right. 

VIII.    Copyrights  and  Patent  Rights. 

Section  8,  Clause  8. —  To  promote  the  progress  of  science  and  use- 
ful arts,  by  securing  for  limited  times  to  authors  and  inventors  the 
exclusive  right  to  their  respective  writings  and  discoveries. 

394.  Reasons  for  the  Clause. — The  protection  of  au- 
thors and  inventors  in  the  possession  of  their  works  and 
inventions  rests  on  the  common  rule  that  a  man  is  entitled 
to  the  rewards  of  his  own  labor.  Besides,  such  protection 
promotes  the  progress  of  science  and  the  arts.  Copyrights 
and  patent  rights  were  granted  by  the  colonies  and  States 
down  to  1789,  when  the  power«to  issue  them  was  vested  in 
Congress. 

395.  Law  of  Copyright. — The  author,  inventor,  de- 
signer, or  proprietor  of  any  book,  chart,  dramatic  or  mu- 
sical composition,  engraving,  cut,  print  or  photograph,  or 
negative  thereof,  or  of  a  painting,  drawing,  chromo,  statue, 
and  of  models  or  designs  to  be  perfected  as  works  of  the 
fine  arts,  upon  complying  with  the  terms  of  the  law,  has  the 
sole,  liberty  of  printing,  publishing,  and  vending  the  same 
for  the  term  of  twenty-eight  years ;  and  then  he,  if  living, 
or  his  widow  or  children,  if  he  be  dead,  as  before,  may  have 
the  same  exclusive  right  continued  for  the  further  term  of 
fourteen  years.  The  right  also  extends  to  the  performance 
of  dramatic  compositions,  and  to  dramatizations  and  trans- 


THE  GENERAL  POWERS  OF  CONGRESS.  223 

lations  of  literary  works.  The  right  is  Hmited,  however, 
by  the  provision  that  the  two  copies  of  the  work  to  be  sent 
to  Washington  (see  below)  must  be  printed  from  type, 
plates,  negatives,  or  drawings,  set  or  made  in  the  United 
States,  or  from  transfers  made  therefrom.  During  the 
period  covered,  the  importation  of  foreign  editions  or  copies 
of  copyrighted  works  is  strictly  forbidden,  save  in  certain 
specified  cases.  One  person  may  import  for  use,  but  not 
for  sale,  subject  to  duty,  not  more  than  two  such  copies  at 
any  one  time ;  but  this  limitation  (Joes  not  apply  to  books  in 
other  languages  than  the  English.  Again,  the  law  provides 
that'  copyright  shall  be  extended  to  a  citizen  of  a  foreign 
state  only  when  such  state,  by  law,  treaty,  or  international 
agreement,  shall  extend  to  American  citizens  the  benefits 
of  copyright  on  substantially  the  same  basis  as  to  its  own 
citizens. 

396.  Steps  to  be  Taken. — The  author  or  publisher  of  a 
copyrighted  work  must  deliver  at  the  office  of  the  Librarian 
of  Congress,  at  Washington,  or  mail  within  the  United 
States,  addressed  to  him,  a  copy  of  the  title  page  of  the  book, 
map,  etc.,  or  of  the  description  of  the  work  of  art,  on  or 
before  the  day  of  publication.  He  must  also  deliver  or 
send,  as  above,  two  copies  of  the  best  edition  of  the  work 
copyrighted,  not  later  than  the  day  of  publication,  to  be 
deposited  in  the  Library  of  Congress.  He  must  pay  a  fee 
of  one  dollar  to  the  Librarian  for  recording  the  title  or 
description  and  furnishing  a  certificate  of  the  same.  Every 
copy  of  the  work  published  must  bear  on  the  title  page,  or 
the  following  page,  the  form :  "  Copyright,  19 — ,  by  A.  B." 
A  copyright  may  be  sold  and  transferred  like  other  property, 
provided  due  notice  is  given  to  the  office  at  Washington. 

397.  International  Copyright. — In  1837  Prussia  passed  a  law 
offering  to  the  authors  of  any  country  that  would  reciprocate,  the 
protection  of  the  Prussian  copyright.  England  followed  this  exam- 
ple in  1838.  Numerous  treaties  affecting  such  arrangements  have 
been  entered  into  by  various  nations.  In  1852  France  granted  the 
French  copyright  to  foreign  authors,  without  requiring  reciprocity. 
After  many  attempts  to  secure  the  enacting  of  an  international  copy- 


224  'i'H^  AMERICAN  GOVERNMENT. 

right  law  by  Congress  had  been  made  and  failed,  the  Fifty-first  Con- 
gress, at  its  second  session,  granted  to  foreign  authors  the  limited 
copyright  set  forth  above. 

398.  Patent  Rights. — A  patent  secures  to  an  inventor 
the  exclusive  right  to  manufacture  and  sell  his  invention  for 
a  period  of  seventeen  years.  Once  the  Commissioner  of 
Patents  could  in  certain  cases  extend  a  patent  seven  years 
beyond  this  time,  but  at  present  there  can  be  no  extension 
without  a  special  act  of  Congress  for  that  purpose.  The 
applicant  for  a  patent  must  ( i )  take  an  oath  that  he  believes 
himself  to  be  the  real  author  of  the  invention  for  which  he 
makes  his  application;  (2)  file  in  the  Patent  Office  a 'de- 
scription of  the  invention;  (3)  pay  a  fee  of  $15  on  filing  his 
application,  and' a  second  fee  of  $20  on  the  allowance  of 
the  case.  Patents  on  designs  run  from  three  to  fourteen 
years,  and  the  fees  range  from  $10  to  $30.  The  questions 
that  the  Patent  Office  asks  are  two:  Whether  the  invention 
is  meritorious,  and  whether  the  applicant  is  its  author. 
The  word  "  patented,"  with  the  dale  of  the  patent,  must  be 
affixed  to  every  patented  article  manufactured.  Patents 
can  be  transferred  like  copyrights,  but  notice  of  the  trans- 
ference must  be  given  at  Washington.  Previous  to  1849 
all  patents  were  issued  by  officers  belonging  to  the  State  De- 
partment.^ 


*  The  Patent  Office,  created  in  the  State  Department  in  1836,  and  trans- 
ferred to  the  Interior  Department  in  1849,  is  one  of  the  most  interesting  of 
the  government  bureaus  at  Washington.  The  vast  collection  of  models  is  an 
important  part  of  the  records  of  the  office,  and  of  the  history  of  invention  in 
the    country. 

"  The  patent  system  has  been  especially  identified  with  the  extraordinary 
development  of  the  physical  resources  of  the  United  States.  The  patent  laws 
have  been  extended  and  improved  to  meet  or  anticipate  the  wants  of  the 
growing  nation,  and  now,  in  its  more  modern  form,  the  patent  system  may  al- 
most be  said  to  be  a  peculiarly  American  institution.  It  is  estimated  that  at 
present  more  than  two  fifths  of  the  world's  important  inventions  originate  in  the 
United  States.  The  records  of  our  Patent  Office  are  sought  for  and  studied  by 
the  inventors  and  scientists  of  every  nation,  and  the  wisdom  of  our  advanced 
patent  policy  is  almost  universally  admitted.  Sir  William  Thomson  said  in 
1876:  'If  Europe  does  not  amend  its  patent  laws,  .  .  .  America  will 
speedily  become  the  nursery  of  important  inventions  for  the  world.'  No 
feature  of  our  federal  system  has  proven  of  greater  economic  importance  than 
the  patent  system." — See  Lalor's  Cyclopcedia,  "Patents  and  the  Patent  System." 


THE  GENERAL  POWERS  OF  CONGRESS.  225 

Section  8,  Clause  9. —  To  constitute  tribunals  inferior  to  the  Su- 
prerne  Court. 

[This  subject  is  discussed  in  Chaps.  XXXiy.  and  XXXVI.] 

IX.    Piracies  and  Felonies  on  the  High  Seas. 

Section  8,  Clause  10. — To  define  and  punish  piracies  and  felonies 
committed  on  the  high  seas,  and  offenses  against  the  law  of  nations. 

399.  Piracies  and  Felonies. — "  By  the  law  of  nations," 
says  Justice-  Story,  "  robbing  or  forcible  depredation  upon 
the  sea,  animo  furandi,  is  piracy."  Congress  has,  however, 
declared  several  offenses  piracy  that  do  not  come  within 
this  definition,  the  most  notable  of  which  is  the  slave  trade. 
The  punishment  of  piracy  is  death.  These  crimes  and 
offenses  relate  to  navigation  and  commerce:  hence  the  pro- 
priety of  giving  Congress  jurisdiction  over  them.  The  law 
of  nations  recognizes  the  United  States,  but  not  Virginia  or 
Ohio.  The  Articles  of  Confederation  gave  Congress  the 
exclusive  power  of  appointing  courts  for  the  trial  of  piracies 
and  felonies  on  the  high  seas,  but  they  gave  no  power  to 
define  these  crimes,  or,  in  fact,  to  punish  them.  Still,  the 
Confederation  did  create  such  courts.  Felonies  and  offenses 
against  the  law  of  nations  do  not  admit  of  such  precise  defi- 
nition as  piracy.  In  English  law,  felony  is  a  crime  that 
may  be  punished  with  death.  A  state  or  nation  has  an  ex- 
clusive jurisdiction  over  the  adjacent  part  or  parts  of  the 
sea,  extending  three  miles  beyond  low-water  mark ;  but  the 
main  sea  or  ocean  lying  beyond  such  a  line  is  the  common 
highway  of  nations,  and  all  maritime  powers  have  over  it  a 
common  jurisdiction.  The  law  of  nations  is  a  body  of  rules 
and  precedents  governing  nations  in  their  relations  with 
one  another,  resting  on  the  common  consent  of  the  civilized 
world.  It  may  be  called  the  common  law  of  the  seas,  so  far 
as  it  relates  to  them. 

X.    Declaration  of  War. 

Section  8,  Clause  it. — To  declare  war,  grant  letters  of  marque 
and  reprisal,  and  make  rules  concerning  captures  on  land  and 
water. 

AM.    GOV. — 15. 


226  THE  AMERICAN  GOVERNMENT. 

400.  Power  to  Declare  War. — A  declaration  of  war  is 
a  formal  notice  given  by  one  nation  that  is  about  to  wage 
war  against  another.  Such  a  notice  is  not  absolutely  called 
for  by  the  usages  of  nations,  but  it  is  common  to  give  one 
before  making  war.  The  power  is  a  high  prerogative  of 
sovereignty.  In  monarchies  this  power  is  commonly  vested 
in  the  crown.  This  is  the  case  in  England;  but  as  the 
House  of  Commons  controls  the  public  purse,  the  crown  is 
not  apt  to  issue  such  a  declaration  unless  assured  of  the 
support  of  that  body.  The  Articles  of  Confederation  au- 
thorized Congress  to  declare  war,  nine  States  assenting  to 
the  declaration.  The  Convention  of  1787  generally  agreed 
that  the  power  should  be  lodged  in  Congress;  and  yet  Mr. 
Hamilton  proposed  to  lodge  it  in  the  Senate,  and  Mr.  Butler 
in  the  President. 

401.  Use  of  the  Power. — Congress  passed  an  act  in  1812  de- 
claring war  against  Great  Britain.  In  1846  it  passed  an  act  of  which 
this  is  the  preamble :  "  Whereas,  by  the  act  of  the  Republic  of  Mex- 
ico, a  state  of  war  exists  between  that  government  and  the  United 
States."  War  in  the  full  sense  of  the  law  of  nations  can  exist  only 
between  nations ;  insurrection  or  rebellion,  or  even  civil  war,  is  not 
war  in  this  sense,  and  there  was  accordingly  no  declaration  of  war 
against  the  South  in  1861.  When  the  government  is  attacked  by 
domestic  or  foreign  enemies,  it  is  the  President's  sworn  duty  to  de- 
fend it,  and  this  the  laws  give  him  ample  power  to  do.  The  Amer- 
ican Civil  War  began  April  13,  1861  ;  President  Lincoln  took  imme- 
diate steps  to  suppress  it,  but  he  did  not  convoke  Congress  until 
July  4,  following.  On  April  25,  1898,  Congress  passed  an  act  declar- 
ing that  war  existed  between  the  United  States  and  Spain,' and  had 
existed  since  April  21. 

402.    Letters  of  Marque  and  Reprisal. — The  law  of 

nations  authorizes  the  employment  in  war  of  two  kinds  of 
armed  vessels :  public  ships  of  war  and  privateers.  The 
first  are  owned,  officered,  and  commissioned  by  the  national 
authority;  the  second  are  owned  and  officered  by  private 
persons,  but  commissioned  by  public  authority.  Such  a 
commission  is  called  letters  of  marque  and  reprisal  A 
privateersman's  commission  insures  him  and  his  crew  the 


THE  GENERAL  POWERS  OF  CONGRESS.  227 

treatment  of  prisoners  of  war  in  case  they   fall  into  the 
ene'my's  hands. 

Privateering  is  subject  to  gross  abuses;  often  it  has  degenerated 
into  piracy,  and  there  is  a  growing  opposition  to  it  throughout  the 
civilized  world.  Letters  of  marque  were  first  issued  to  commanders 
of  private  land  forces.  Mark,  or  march,  means  boundary,  and  such 
a  commission  authorized  the  officer  to  whom  it  was  issued  to  cross 
the  border  and  make  reprisals  on  the  persons  and  property  of  the 
enemy.  But  privateering  on  land  is  no  longer  permitted.  Captures 
of  prisoners  and  property  in  war,  within  certain  limits,  are  regulated 
by  the  law  of  nations.  Still,  every  nation  makes  captures  the  sub- 
ject of  regulation  by  its  own  laws,  and  has  its  own  prize  courts. 
Naturally,  the  whole  subject  was  committed  to  Congress. 

XL    The  Army  and  the  Navy. 

Section  8,  Clause  12. —  To  raise  and  support  armies,  but  no  appro- 
priation of  money  to  that  use  shall  be  for  a  longer  term  than  two 
years. 

Section  8,  Clause  13. — To  provide  and  maintain  a  navy. 

Section  8,  Clause  14. —  To  make  rules  for  the  government  and 
regulation  of  the  land  and  naval  forces. 

403.  The  Two- Years  Provision. — Free  States  are  jeal- 
ous of  standing  armies,  since  the  freedom  of  such  States 
has  so  often  been  overthrown  by  them.  The  members  of 
the  Federal  Convention,  sharing  this  feeling  to  the  full, 
placed  the  raising  and  support  of  armies  in  the  hands  of 
Congress,  and  then  carried  their  distrust  to  the  point  of  for- 
bidding appropriations  of  money  for  this  purpose  for  more 
than  two  years.  This  rule  keeps  the  army  within  easy 
reach  of  the  people.  No  matter  how  determined  the  Presi- 
dent or  Congress  may  be  to  make  war,  or  even  to  carry  on 
one  already  begun,  or  to  increase  the  army,  the  people,  at 
the  next  election  of  Representatives,  can  regulate  the  mat- 
ter. In  respect  to  no  other  appropriation  has  the  Constitu- 
tion imposed  such  a  limitation.  The  usage  is  to  make  the 
army  appropriation  every  year,  but  in  1863  Congress  made 
it  for  two  years.  Navies  have  never  been  subject  to  the 
same  jealousy  as  armies,  and  the  two-years  rule  does  not 
apply  to  the  federal  navy. 


228  THE  AMERICAN  GOVERNMENT. 

The  Articles  of  Confederation  gave  Congress  power  to  agree  upon 
the  number  of  land  forces,  and  to  make  requisitions  upon  the  States 
for  their  quotas,  which  were  apportioned  among  them  according  to 
their  respective  numbers  of  white  inhabitants ;  but  it  was  left  to  the 
States  to  raise  their  own  quotas.  The  disastrous  results  of  this  sys- 
tem do  not  need  again  to  be  related. 

404.  Army  and  Navy. — The  Confederation  bequeathed 
to  the  new  government  a  small  army,  which  has  been  con- 
tinued to  the  present  time,  and  is  known  in  law  as  the 
"  Military  Peace  Establishment  of  the  United  States."  The 
present  law  fixes  the  maximum  size  of  the  army  at  100,000. 
The  actual  size  is  about  60,000  men  and  officers.  The  high- 
est grade  has  been  major  general,  as  a  rule ;  but  Washing- 
ton, Grant,  and  Sherman  bore  the  higher  titles  of  lieutenant 
general  and  general ;  and  the  rank  of  lieutenant  general  has 
also  been  conferred  upon  Sheridan,  Schofield,  and  others. 
A  General  Staff  Corps  composed  of  forty-five  officers  was 
provided  for  in  1903.  Geographically  the  army  is  distrib- 
uted into  eleven  departments. 

The  navy  of  the  Revolution  hardly  survived  that  struggle, 
and  the  one  subsequently  created  was  an  adjunct  of  the 
army  until  1798.  Up  to  1862  the  captaincy  was  the  highest 
rank.  The  ranks  of  commodore,  rear  admiral,  vice  admiral, 
and  admiral  were  created  during  or  at  the  close  of  the  Civil 
War ;  the  last  two  afterwards  lapsed,  but  the  title  of  admiral 
was  revived  and  conferred  upon  George  Dewey,  the  hero  of 
Manila.  Within  a  few  years,  many  fine  modern  war  ves- 
sels have  been  added  to  the  navy,  until  it  ranks  as  one  of  the 
great  armaments  of  the  world.  It  is  manned  by  over  25,000 
officers  and  men. 

405.  Rules  and  Regulations. — The  power  to  make  rules  for  the 
land  and  naval  forces  naturally  goes  with  power  to  declare  war  and 
to  maintain  an  army  and  a  navy.  This  is  also  a  part  of  the  plan  to 
keep  all  matters  relating  to  war  under  the  control  of  Congress  and 
within  the  reach  of  the  people.  The  Rules  and  Articles  of  War  are 
128,  and  the  Articles  for  the  government  of  the  navy  60  in  number. 

406.  The  Army  in  the  Civil  War. — It  was  under  clauses  12  and 
13  that  the  enormous  military  and  naval  forces  which  restored  the 
Union  in   1861-65  were  created   and  maintained.    Congress  passed 


THE  GENERAL  POWERS  OF  CONGRESS.  229 

several  acts  to  give  them  effect.  On  July  22  and  27,  1861,  the  Presi- 
dent was  authorized  to  accept  the  services  of  1,000,000  volunteers  for 
a  period  not  exceeding  three  years.  On  July  17,  1862,  the  authority 
of  the  President  over  the  State  militias  was  increased.  On  March 
3,  1863,  Congress  passed  the  Enrollment  Act.  It  included  in  the  na- 
tional forces  all  able-bodied  male  citizens  of  the  United  States,  and 
persons  of  foreign  birth  who  had  declared  their  intention  to  become 
citizens,  between  the  ages  of  20  and  45  years,  with  exceptions.  It 
divided  the  country  into  districts,  and  located  in  each  one  an  enroll- 
ment board.  All  persons  so  enrolled  were  declared  subject  to  be 
called  into  military  service  for  three  years.  From  the  list  of  those 
enrolled  men  were  drafted  by  lot ;  but  a  drafted  man  was  allowed  to 
furnish  an  acceptable  substitute,  or  pay  a  commutation  of  $300,  and 
be  discharged  from  further  liability  under  that  draft.  An  act  ap- 
proved February  24,  1864,  was  still  more  efficient.  The  excepted 
classes  were  reduced  in  number ;  the  commutation  clause  was  re- 
pealed ;  and  the  rule  in  regard  to  substitutes  made  more  stringent. 
On  July  4,  of  the  same  year,  Congress  gave  the  President  authority, 
at  his  discretion,  to  call  at  any  time  for  any  number  of  volunteers 
for  the  term  of  one,  two,  or  three  years.  These  several  acts  pro- 
vided pay  for  soldiers  and  bounties  for  volunteers,  regulated  the 
quotas  of  towns,  cities,  wards,  and  precincts,  and  created  a  vigorous 
drafting  machinery.  The  strength  of  the  regular  army  was  also 
increased.  During  the  Civil  War  the  President  called  for  2,763,670 
men:  the  country  furnished  2,859,132,  or,  reduced  to  a  three  years' 
standard,  2,320,272/ 

XII.    The  Militia. 

Section  8,  Clause  15. —  To  provide  for  calling  forth  the  militia  to 
execute  the  laws  of  the  Union,  suppress  insurrections,  and  repel 
invasions. 

Section  8,  Clause  16. —  To  provide  for  orgaViizing,  arming,  and  dis- 
ciplining the  militia,  and  for  governing  such  part  of  them  as  may  be 
employed  in  the  service  of  the  United  States,  reserving  to  the  States 
respectively  the  appointment  of  the  officers,  and  the  authority  of 
training  the  militia  according  to  the  discipline  prescribed  by  Con- 
gress. 

407.  Laws  Concerning  the  Militia. — The  military  force 
of  the  United  States  is  divided  into  two  classes :  the  regular 
troops,  or  the  standing  army,  and  the  militia.  The  militia 
are  the  citizen-soldiers,   enrolled  and  organized  for  disci- 

*  Phisterer,  Statistical  Record  of  the  Armies  of  the  United  States,  p.   lo. 


230  THE  AMERICAN  GOVERNMENT. 

pline,  but  called  into  active  service  only  in  cases  of  emer- 
gency. These  two  clauses  give  Congress  as  full  control  ovex 
the  militia,  for  the  purposes  specified  in  the  first  one,  as  the 
previous  clauses  give  it  over  the  regular  army. 

In  1792  Congress  passed  an  act  to  establish  a  uniform  militia 
throughout  the  United  States.  A  more  complete  law,  enacted  in 
1795,  authorized  the  President,  as  he  might  think  necessary,  to  call 
out  the  militia  for  the  purposes  named  in  clause  15.  It  was  under 
the  provisions  of  this  law  that  President  Lincoln  took  the  first  steps 
to  preserve  the  Union.  The  militia  law  of  1862  directed  the  enroll- 
ment in  the  militia  of  every  able-bodied  male  citizen  of  the  respective 
States  who  was  of  the  age  of  18  and  under  45.  The  President  was 
authorized  to  provide  for  the  enrollment  of  the  militia,  if  the  States 
neglected  to  do  so.  Practically,  however,  the  matter  was  left  to  the 
States.  While  in  active  service,  the  militia  are  paid  the  same  as  the 
regular  troops  and  are  syj)ject  to  the  same  rules.  Before  1862  they 
could  not  be  required  to  engage  in  active  service  more  than  three 
months  in  a  year,  but  the  law  of  that  year  extended  the  time  to  nine 
months.  The  law  of  1903  divided  the  militia  into  the  National 
Guard  and  the  Reserve  Militia,  and  strengthened  somewhat  the 
national  control. 

408.  The  Militia  Called  into  Service. — In  three  emergencies  the 
President  has  found  it  necessary  to  call  the  militia  of  certain  States 
into  active  service;  in  1794  to  enforce  the  revenue  laws  and  suppress 
the  Whisky  Insurrection  in  western  Pennsylvania ;  in  the  war  of 
1812,  to  repel  invasion ;  and  in  the  Civil  War,  to  suppress  insurrec- 
tion. In  the  last  instance  three  several  calls  were  made:  April  15, 
1861,  for  75,000  men;  August  4,  1862,  for  300,000;  June  15,  1863,  for 
100,000.  ^'i 

XIII.    The  District  of  Columbia.  ' 

Section  8,  Clause  17. —  To  exercise  exclusive  legislation  in  all 
cases  whatsoever  over  such  district  (not  exceeding  ten  miles  square) 
as  may,  by  cession  of  particular  States,  and  the  acceptance  of  Con- 
gress, become  the  seat  of  the  government  of  the  United  States,  and 
to  exercise  like  authority  over  all  places  purchased  by  the  consent  of 
the  legislature  of  the  State  in  which  the  same  shall  be,  for  the  erec- 
tion of  forts,  magazines,  arsenals,  dockyards,  and  other  needful 
buildings. 

409.  Power  to  Establish  a  Capital.— Before  the  year 
1800  the  United  States  had  no  proper  capital.  Congress 
sat  at  different  places,  as  circumstances  required.     Previ- 


THE  GENERAL  POWERS  OF  CONGRESS.  231 

ous  to  1783  Philadelphia  was  the  place  of  meeting,  except 
when  it  was  threatened  by  the  British  troops  or  was  in  their 
possession.  In  June  of  that  year  some  mutinous  soldiers 
surrounded  the  building  where  Congress  was  in  session, 
subjecting  the  body  to  gross  insults,  and,  as  the  State 
authorities  did  not  furnish  the  needed  protection,  Congress 
hastily  adjourned  to  Princeton.  Congress  often  discussed 
the  establishment  of  a  Federal  City,  and  even  selected  a 
site  on  the  Delaware,  but  nothing  came  of  this  action. 
With  the  foregoing  facts  fresh  in  mind,  the  Federal  Con- 
vention naturally  gave  Congress  power  to  establish  a  seat 
of  government,  over  which  it  should  have  exclusive  juris- 
diction. 

410.  District  of  Columbia  Ceded. — Maryland,  in  1788, 
and  Virginia,  in  1789,  together  offered  to  cede  a  Federal 
District  on  the  Potomac,  and  Congress,  in  1790,  after  a 
violent  contest,  accepted  these  cessions.  Congress  merely 
specified  that  the  district  should  lie  between  the  mouth  of 
the  eastern  branch  of  the  Potomac  and  the  mouth  of  the 
Connogochegue,  leaving  the  precise  location  to  the  Presi- 
dent acting  through  commissioners.  The  commissioners 
located  and  named  the  district,  and  gave  the  new  capital  its 
name.  Time  proved  that  the  part  lying  on  the  right  bank 
of  the  river  was  an  encumbrance  rather  than  an  advantage, 
and  in  1846  it  was  re-ceded  to  Virginia.  The  original  Dis- 
trict of  Columbia  contained  100  square  miles;  the  present 
one  contains  somewhat  less  than  70. 

After  1785  the  Old  Congress  sat  in  New  York,  and  that  city  con- 
tinued the  seat  of  government  until  1790,  when  it  was  removed  to 
Philadelphia.  In  1800  Congress  and  the  executive  and  judicial  de- 
partments removed  to  Washington. 

411.  Government  of  the  District. — The  control  of 
Congress  over  the  District  is  absolute.  In  1871  a  Terri- 
torial government  was  established,  with  a  governor  and  a 
council  appointed  by  the  President  and  Senate,  and  with  "a 
house  of  delegates  and  a  delegate  to  Congress  elected  by  the 
people.     This  government  not  proving  successful,  it  was 


232  THE  AMERICAN  GOVERNMENT. 

abolished  in  1874.  At  present  the  District  is  governed  by  a 
board  of  three  commissioners,  two  of  whom  are  appointed 
by  the  President  and  Senate  for  three  years ;  the  third  is  an 
officer  of  the  Engineers  of  the  army  detailed  by  the  Presi- 
dent. The  commissioners  appoint  all  municipal  officers ; 
Congress  pays  half  the  expenses  of  the  local  government, 
and  the  property  owners  the  other  half.  The  ballot  is  un- 
known, and  the  people  have  no  political  rights  ^yhatever. 

413.  Forts,  Magazines,  etc. — Congress  should  have  jurisdiction 
over  forts,  magazines,  shipyards,  etc.,  for  the  same  reason  that  it 
should  have  jurisdiction  over  the  seat  of  government.  Still  the 
States,  in  ceding  jurisdiction  of  the  land  that  Congress  buys  for  these 
purposes,  commonly  reserve  the  right  to  serve  the  processes  of  their 
own  courts,  warrants  and  the  like,  in  these  places.  This  prevents 
such  places  becoming  asylums  for  lawbreakers.  These  processes  are 
served  also  in  the  post  offices  and  customhouses. 

XIV.    Power  to  Make  Necessary  Laws. 

Section  8,  Clause  18. —  To  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing  powers,  and  all 
other  powers  vested  by  this  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof. 

413.  Doctrine  of  Implied  Powers. — It  has  been  fully 
explained  in  Chapters  XII.,  XIII.,  that  the  federal  govern- 
ment is  one  of  delegated  and  not  of  inherent  powers;  also 
that  some  of  these  powers  are  delegated  expressly,  or  in 
words,  others  by  implication,  or  by  inference.  It  was  also 
shown  that  implied  powers  are  inseparable  from  a  written 
constitution.'  Accordingly,  it  has  been  held  that  the  clause 
just  quoted  is  in  no  way  essential  to  the  government.  Mr. 
Hamilton  said  that  the  constitutional  operation  of  the  gov- 
ernment would  be  just  the  same  if  this  clause  were  obliter- 
ated as  it  would  be  if  the  clause  were  repeated  in  every 
article ;  "  since  it  is  only  declaratory  of  a  truth  which  would 
have  resulted  by  necessary  and  unavoidable  implication  from 
the  very  act  of  constituting  a  federal  government  and  vest- 
ing it  with  certain  powers."  *     While  such  is  undoubtedly 

»  The  Federalist,  No.  39. 


THE  GENERAL  POWERS  OF  CONGRESS.  233 

the  fact,  it  was  still  fortunate  that  the  Convention  inserted 
the  clause  in  the  instrument,  so  as  to  remove  all  doubt  on  th » 
subject. 

414.  The  Theory  Carried  into  Practice. — From  the 
first,  Congress  has  legislated  on  the  theory  of  implied  pow- 
ers. It  has  built  lighthouses,  improved  rivers  and  harbors, 
laid  embargoes  on  commerce,  established  banks,  given  the 
people  of  cities  fr^ee  mail  delivery,  provided  money-order 
facilities,  created  mints  and  assay  offices,  inspected  steam- 
boats, constructed  roads,  promoted  education  —  has  done 
these  and  a  thousand  other  things  that  are  not  mentioned  in 
the  Constitution. 

415.  Two  Schools  of  Construction. — The  extent  of  the 
powers  of  the  national  government  is  the  great  constitu- 
tional question  of  the  national  history.  It  has  called  into 
existence  two  schools  of  politics.  Strict-construction  and 
Loose-construction.  The  founders  of  these  schools  were 
Thomas  Jefferson  and  Alexander  Hamilton.  The  first 
school  have  clung  to  the  enumerated  powers;  the  second 
have  emphasized  the  implied  powers.  The  first  give  promi- 
nence to  the  States;  the  second  seek  to  give  to  the  Nation 
strength  and  dignity.  The  first  lay  stress  on  Amendment 
X. ;  the  second  on  clauses  i  and  18  of  section  8,  Article  I. 
Clause  I  is  sometimes  called  the  "  elastic  clause  "  and  the 
"  general  welfare  clause,"  and  it  is  the  great  bulwark  of  the 
party  founded  by  Hamilton. 

416.  Limitations  of  the  Two  Schools. — It  must  not  be 
supposed,  however,  that  Strict-constructionists  as  a  body 
have  denied  that  there  are  implied  powers,  or  that  Loose- 
constructionists  as  a  body  have  denied  that  the  States  have 
rights.  The  question  is  a  relative  one,  viz. :  How  far  shall 
the  doctrines  of  State  rights  or  of  implied  powers  be 
pushed?  Each  school  has  tended  to  exaggerate  its  chosen 
principle.  Extremists  of  the  one  school  have  belittled  the 
Nation,  extremists  of  the  other  have  belittled  the  States. 
Either  theory  pushed  to  an  extreme  destroys  the  Constitu- 
tion.    Strict-construction  thus  pressed  makes  the  Union  a 


234  THE  AMERICAN  GOVERNMENT. 

rope  of  sand;  Loose-construction,  the  will  of  Congress  the 
supreme  law  of  the  land.  Statesmen  and  parties  have  some- 
times shifted  their  principles  of  construction,  owing  to  polit- 
ical conditions.  Strict-constructionists  in  possession  of  the 
government  have  strongly  emphasized  implied  powers; 
Loose-constructionists  in  opposition  have  emphasized  State 
rights  as  strongly.  Still,  the  dividing  line  is  distinctly 
traced  in  history. 

417.  Questions  Involving  Construction. — A  few  of  the  many 
questions  involving  methods  of  construction  may  be  particularized. 

1.  In  1791  Mr.  Jefferson  opposed  the  first  United  States  Bank  on 
the  ground  that  the  Constitution  did  not  authorize  such  an  institu- 
tion. Hamilton  defended  it  on  the  ground  that  it  was  necessary  to 
create  and  maintain  the  public  credit,  to  carry  on  the  fiscal  business 
of  the  government,  and  to  promote  the  general  welfare.  In  1817  the 
party  that  Jefferson  had  founded,  chartered  the  second  Bank  of  the 
United  States  for  substantially  the  same  reasons  that  Hamilton  had 
assigned  for  chartering  the  first  one.  The  Supreme  Court  in  1820 
declared  the  bank  constitutional,  but  President  Jackson,  in  1832, 
vetoed  a  bill  rechartering  it,  because,  he  said,  it  was  unconstitu- 
tional. When  the  present  system  of  national  banks  was  created  in 
1863,  the  Democratic  party  stood  on  Strict-construction  ground,  the 
Republican  on  Loose-construction  ground.  The  Supreme  Court  hav- 
ing decided  that  Congress  has  jurisdiction  over  the  subject,  consti- 
tutional objections  have  practically  ceased.  This  history  was  in 
substance  repeated  in  relation  to  legal  tenders. 

2.  In  1806  Congress  made  its  first  appropriation  for  the  Cumber- 
land Road,  connecting  the  Atlantic  seaboard  with  the  Mississippi 
valley  and  this  was  the  beginning  of  such  improvements  made  at  the 
expense  of  the  national  government.  The  question  of  constitutional 
power  was  raised,  and  from  1820  to  i860  internal  improvements  were 
a  party  question.  Presidents  of  the  Strict-construction  school  some- 
times vetoed  bills  for  such  improvements ;  the  Whig  party  always 
favored  a  liberal  policy.  At  present  public  improvements  can  hardly 
be  called  a  constitutional  question ;  the  annual  River  and  Harbor  Bill 
is  not  a  party  measure.  The  constitutional  argument  in  favor  of 
these  appropriations  has  assumed  such  forms  as  these:  they  pro- 
mote the  general  welfare;  they  are  necessary  to  carry  out  the  ex- 
pressly delegated  powers;  they  contribute  to  the  common  defense; 
Congress  may  establish  post  roads  and  provide  for  the  transportation 
of  troops  and  munitions  of  war. 

3.  In  organizing  the  revenue  system  of  the  government,  Hamil- 


THE  GENERAL  POWERS  OF  CONGRESS.  235 

ton  recommended  that  customs  duties  be  so  levied  as  to  afford  inci- 
dental protection  to  American  manufacturers.  This  recommendation 
was  embodied  in  laws,  and  from  that  time  the  protective  principle 
has  commonly  been  more  or  less  recognized  in  revenue  legislation. 
It  has  been  denied  that  the  Constitution  gives  Congress  power  to  levy 
duties  and  other  taxes  save  for  revenue  purposes ;  to  which  it  is 
replied  that  the  general-welfare  clause  gives  all  the  power  that  is 
needed. 

4.  Mr.  Jefferson  in  1803  thought  the  annexation  of  Louisiana  and 
other  foreign  territory  unconstitutional ;  history  made  it  necessary, 
the  Supreme  Court  gave  its  sanction,  the  nation  acquiesced,  and  the 
power  has  long  been  admitted  without  question. 

These  are  but  a  few  of  the  many  questions  that  could  be  men- 
tioned under  this  head.  It  has  been  denied  that  the  census,  as  now 
organized,  is  constitutional,  since  the  Constitution  merely  men- 
tions an  enumeration  of  the  people.  The  Bureau  of  Education  also 
has  encountered  constitutional  objections. 

418.  Movement  of  Political  Thought. — This  brief  review  shows 
that  certain  questions  once  discussed  in  the  constitutional  forum 
have  been  practically  removed  from  that  forum,  and  become  simply 
questions  of  political  expediency.  It  shows,  also,  that  Loose-con- 
struction has  made  steady  progress  since  the  foundation  of  the  gov- 
ernment. In  fact,  the  Constitution  of  to-day  is,  in  practice,  a  very 
different  instrument  from  the  Constitution  of  Washington's  time. 
Propositions  that  would  then  have  been  opposed  as  invasions  of 
State  rights,  are  now  accepted,  even  by  Strict-constructionists,  as  a 
matter  of  course.  Among  the  causes  of  this  movement  of  political 
thought,  these  may  be  mentioned : 

Territorial  growth  and  the  formation  of  new  States  that  were,  in 
great  degree,  the  creations  of  the  federal  government.  When  a 
Loose-construction  party  has  obtained  possession  of  the  govern- 
ment, it  has  carried  its  ideas  into  practice,  and  the  Strict-construc- 
tion party  succeeding  it,  finding  that  those  views  have  become 
familiar  to  the  people,  have  accepted  some  of  them.  The  exercise 
of  the  unlimited  war  power,  especially  in  the  Civil  War,  has  tended 
enormously  to  centralize  power.  Then,  the  non-political  decisions  of 
the  national  courts  have  uniformly  tended  strongly  to  Loose-con- 
struction principles.  And  finally,  social,  industrial,  and  commercial 
changes  have  compelled  Congress  to  assume  new  powers.* 

*  See  Lalor's  Cyclopedia,   "Construction." 


CHAPTER  XXVI. 

THE  LIMITATIONS  OF  THE  UNION. 

Article  I. 

419.  Reasons  for  Limitations. — As  we  have  seen,  the 
government  of  the  United  States  is  one  of  Hmited  or  dele- 
gated powers.  The  first  Hmitation,  and  the  greatest  one  of 
all,  is  the  States,  to  which  powers  not  delegated  to  the  Union 
are  mainly  reserved.  But  implied  powers,  in  the  very 
nature  of  the  case,  are  matters  of  opinion  or  judgment. 
Hence  Congress,  in  the  use  of  its  discretion,  might  exercise 
powers  that  the  people  did  not  intend  to  delegate.  Public 
discussion  and  the  elections  would  correct  such  abuses  of 
power  in  ordinary  cases ;  but  there  were  some  points  deemed 
so  important  by  the  Federal  Convention  as  to  demand  safe- 
guards in  the  form  of  positive  prohibitions.  Some  of  these 
powers  are  forbidden  merely  because  they  were  deemed  in- 
expedient or  impolitic ;  others,  because  their  exercise  would 
lead  to  injustice  and  oppression. 

Section  g,  Clause  i. — The  migration  or  importation  of  such  per- 
sons as  any  of  the  States  now  existing  shall  think  proper  to  admit 
shall  not  be  prohibited  by  the  Congress  prior  to  the  year  one  thou- 
sand eight  hundred  and  eight,  but  a  tax  or  duty  may  be  imposed  on 
such  importation,  n9t  exceeding  ten  dollars  for  each  person. 

420.  The  Slave  Trade.— All  the  States  but  North  Caro- 
lina, South  Carolina,  and  Georgia  had  prohibited  the  slave 
trade  before  1787,  and  a  majority  of  the  Convention  desired 
to  put  Congress  in  a  position  to  make  the  prohibition  uni- 
versal. But  these  three  States  objected.  After  no  little 
dissension,  the  difficulty  was  adjusted,  as  above,  in  the  third 
compromise.     The  tax  permitted  was  never  imposed.     In 

1794  Congress  prohibited  the  exportation  of  slaves,  and  in 

(336) 


THE  LIMITATIONS  OF  THE  UNION.  237 

1807  it  prohibited  their  importation,  the  act  to  take  effect 
January  i,  1808.     In  1820  it  declared  the  slave  trade  piracy. 

Section  g,  Clause  2. — The  privilege  of  the  writ  of  habeas  corpus 
shall  not  be  suspended,  unless  when,  in  cases  of  rebellion  or  invasion, 
the  public  safety  may  require  it. 

421.  The  Habeas  Corpus  in  England. — The  writ  of 
habeas  corpus  is  one  of  the  most  ancient  and  valuable  polit- 
ical institutions  of  England.  Its  origin  dates  from  before 
Magna  Charta.  Kings  sometimes  strove  to  restrict  its  oper- 
ation, or  to  ignore  it  altogether,  but  these  attempts  came 
practically  to  an  end  with  the  Habeas  Corpus  Act  of  1679. 
For  centuries  the  writ  has  there  been  the  main  safeguard  of 
personal  liberty. 

Hallam  thus  explains  the  ancient  operation  of  the  writ :  "  From 
earliest  records  of  the  English  law,  no  freeman  could  be  detained  in 
prison,  except  upon  a  criminal  charge  or  conviction,  or  for  a  civil 
debt.  In  the  former  case  it  was  always  in  his  power  to  demand  of 
the  Court  of  the  King's  Bench  a  writ  of  habeas  corpus  ad  subjicien- 
dum directed  to  the  person  detaining  him  in  custody,  by  which  he 
was  enjoined  to  bring  up  the  body  of  the  prisoner,  with  the  warrant 
of  commitment,  that  the  court  might  judge  of  its  sufficiency,  remand 
the  party,  admit  him  to  bail,  or  discharge  him,  according  to  the 
nature  of  the  charge."  * 

422.  The  Operation  of  the  Writ. — A  prisoner,  or  some 
person  for  him,  makes  an  application  to  a  judge  of  com- 
petent jurisdiction,  alleging  that  the  prisoner  is  unlawfully 
confined,  reciting  the  history  of  the  case,  and  praying  that 
he  be  set  at  liberty.  The  judge,  if  he  thinks  the  facts  call 
for  his  interference,  issues  a  writ  of  habeas  corpus  com- 
manding the  officer  having  the  person  in  custody  to  produce 
him  in  court  and  to  show  reason  for  his  detention.  If  the 
officer  gives,  a  good  reason  for  his  action,  the  judge  leaves 
the  prisoner  in  his  hands ;  if  not,  the  judge  discharges  him 
or  admits  him  to  bail.  The  writ  is  sometimes  used  to  lib- 
erate persons  confined  in  hospitals  for  the  insane,  and  to 
obtain  possession  of  children   who  are  in  the  custody  of 

*  Constitutional  History  of  England,  Vol.  III.,  p.   16.     (London.  1832). 


238  THE  AMERICAN  GOVERNMENT. 

other  persons  than  the  claimants.  It  takes  its  name  from 
the  words  habeas  corpus,  you  may  have  the  body,  found  in 
the  old  Latin  form. 

423.  Cases  of  Suspension. — This  writ  was  in  full  force 
and  vigor  in  the  States  when  the  Constitution  was  framed. 
It  was  considered  the  high-water  mark  that  personal  liberty 
had  reached  in  the  long  conflict  with  kingly  power.  Nat- 
urally therefore  the  Constitution  prescribed  that  it  should 
not  be  suspended  unless  in  the  gravest  emergencies.  At 
such  times,  when  society  is  disturbed,  when  officers  having 
prisoners  in  custody  cannot  attend  to  civil  business,  when 
it  may  be  impossible  to  produce  the  witnesses  against  the 
accused,  or  when  it  is  proper  to  confine  men  against  whom 
legal  offenses  cannot  be  proved  in  courts  of  justice,  the 
writ  may  be  suspended  in  the  name  of  the  public  safety. 

424.  Who  Shall  Suspend  ? — The  common  answer  to  the 
question  is  Congress.  In  fact,  however,  it  has  always  been 
done  by  the  President.  The  first  suspension  was  in  April, 
1861,  when  President  Lincoln  authorized  General  Scott  to 
disregard  the  writ  on  the  line  of  travel  between  Washing- 
ton and  Philadelphia.  In  May  the  suspension  was  extended 
tb  Florida,  in  July  to  New  York,  and  in  September  it  was 
made  general  in  cases  of  arrest  by  military  authority  for 
disloyal  practices.  In  March,  1863,  Congress  passed  an  act 
of  indemnity,  legalizing  the  President's  acts  in  respect  to 
the  writ,  and  authorizing  him  to  suspend  it  throughout  the 
United  States,  or  in  any  part  thereof,  whenever,  in  his 
judgment,  the  public  safety  might  require  it.  In  Septem- 
ber, 1863,  the  President  made  such  a  suspension  through- 
out the  country,  in  the  case  of  deserters  and  of  persons 
resisting  the  draft  or  accused  of  offenses  against  the  military 
or  naval  service.  The  war  over,  the  suspension  was  grad- 
ually withdrawn,  but  it  was  not  until  August,  1866,  that 
the  privilege  of  the  writ  was  restored  in  Texas. 

425.  Military  Arrests  in  the  Civil  War. — A  great  number  of  mil- 
itary arrests  were  made  in  the  course  of  this  war.  Citizen  prisoners 
to  the  number  of  38,000  were  reported  to  the  Provost  Marshal's  office 
in  Washington.    Chief-Justice  Taney,  as  well  as  State  judges,  issued 


THE  LIMITATIONS  OF  THE  UNION.  239 

writs  of  habeas  corpus  in  the  interest  of  some  of  them,  but  the  fed- 
eral officers  to  whom  they  were  directed  refused  to  obey  them.  A 
few  of  the  prisoners  were  tried  by  court-martial,  but  most  of  them 
were  in  time  discharged  without  trial.  On  the  one  hand,  it  was 
denied  that  the  suspension  of  the  writ  was  constitutional,  and 
affirmed  that  many  arrests  were  made  without  reason ;  on  the  other 
hand,  it  was  said  that  the  nation  was  engaged  in  a  tremendous  war, 
calling  for  all  its  energies,  that  many  persons  not  in  the  military 
or  naval  service  were  secretly  or  openly  giving  aid  and  comfort  to 
the  enemy,  and  that  the  government  must  use  summary  and  vigor- 
ous means  in  self-defense. 

426.  The  Milligan  Case. — In  October,  1864,  a  court-martial,  sit- 
ting in  Indianapolis  sentenced  several  citizens  of  Indiana  to  death 
for  treasonable  practices.  The  President  commuted  the  sentence  to 
imprisonment  for  life,  and  the  prisoners  were  sent  to  the  Ohio  peni- 
tentiary. In  December,  1866,  the  case  of  these  prisoners,  known  as 
the  Milligan  Case,  from  the  principal  actor,  came  before  the  Supreme 
Court.  The  court  set  the  prisoners  at  liberty,  and  overturned  the 
whole  legal  theory  underlying  their  arrest  and  trial.  The  court 
held  that  "  martial  rule  can  never  exist  where  the  courts  are  open, 
and  in  the  proper  and  unobstructive  exercise  of  their  jurisdiction";* 
also,  that  "  the  suspension  of  the  writ  does  not  authorize  the  arrest 
of  any  one,  but  ^mply  denies  the  one  arrested  the  privilege  of  this 
writ  in  order  to  obtain  his  liberty."  * 

Section  9,  Clause  3. —  No  bill  of  attainder  or  ex  post  facto  law  shall 
be  passed. 

427.  A  Bill  of  Attainder. — Mr.  Justice  Field,  delivering 
a  decision  of  the  Supreme  Court,  gives  this  definition:  "  A 
bill  of.  attainder  is  a  legislative  act  which  inflicts  punish- 
ment without  a  judicial  trial.  If  the  punishment  be  less 
than  death,  the  act  is  termed  a  bill  of  pains  and  penalties. 
Within  the  meaning  of  the  Constitution,  bills  of  attainder 
include  bills  of  pains  and  penalties.  In  these  cases  the  leg- 
islative body,  in  addition  to  its  legitimate  functions,  exer- 
cises the  powers  and  office  of  judge;  it  assumes,  in  the  lan- 
guage of  the  text-books,  judicial  magistracy ;  it  pronounces 
upon  the  guilt  of  the  party,  without  any  of  the  forms  or 
safeguards  of  trial;  it  determines  the  sufficiency  of  the 
proofs  produced,  whether  conformable  to  the  rules  of  evi- 


»  Ex  Parte  Milligan,  4  Wallace  2. 


240  THE  AMERICAN  GOVERNMENT. 

dence  or  otherwise;  and  it  fixes  the  degree  of  punishment 
in  accordance  with  its  own  notions  of  the  enormity  of  the 
oflfense.  .  .  .  These  bills  are  generally  directed  against 
individuals  by  name;  but  they  may  be  directed  against  a 
whole  class."  ^ 

Evidently  bills  of  attainder  may  be  made  terrible  instruments  of 
cruelty  and  oppression.  Once  kings  of  England  frequently  obtained 
their  passage  in  the  name  of  the  public  safety,  in  order  to  crush  their 
enemies,  but  since  1796  no  such  bill  has  passed  Parliament.  Bills  of 
attainder,  or  what  amounted  to  the  same  thing,  were  much  employed 
in  the  Revolution  to  punish  the  adherents  of  the  royal  cause ;  but  the 
Convention  of  1787  considered  it  necessary  to  put  so  dangerous  a 
power  beyond  the  reach  of  either  Congress  or  the  States,  and  so 
prohibited  it  lo  Congress  in  the  above  clause,  and  to  the  States  in 
section  10,  clause  i. 

428.  Ex  Post  Facto  Laws. — "  An  ex  post  facto  law," 
says  Chief-Justice  Marshall,  "  is  one  which  renders  an  act 
punishable  in  a  manner  in  which  it  was  not  punishable 
when  it  was  committed.  Such  a  law  may  inflict  penalties 
on  the  person,  or  may  inflict  pecuniary  penalties  which 
swell  the  public  treasury."  ^  In  the  United  States,  the 
phrase  ex  post  facto  relates  to  criminal  laws  only.  Such 
laws  are  repugnant  to  natural  reason  and  feeling. 

Section  9,  Clause  4. —  No  capitation  or  other  direct  tax  shall  be 
laid,  unless  in  proportion  to  the  census  or  enumeration  hereinbefore 
directed  to  be  taken. 

Section  9,  Clause  5. —  No  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  State. 

Section  9,  Clause  6. —  No  preference  shall  be  given  by  any  regula- 
tion of  commerce  or  revenue  to  the  ports  of  one  State  over  those  of 
another;  nor  shall  vessels  bound  to  or  from  one  State  be  obliged  to 
enter,  clear,  or  pay  duties  in  another. 

429.  Export  Duties. — Clause  5  is  an  absolute  prohibition 
of  taxes  on  exports  levied  at  the  customhouse ;  but  products 
intended  for  the  foreign  market  may  be  taxed  by  Congress 
and  by  the  States  the  same  as  products  intended  for  the 
home  market.     The  objection  to  export  duties  is  that  they 


1  Cummings  v.  the  State  of  Missouri,  4  Wallace  277. 
*  Fletcher  v.  Peck,  6  Cranch  138. 


THE  LIMITATIONS  OF  THE  UNION.  241 

increase  the  price  of  products  and  so  make  it  more  difficult 
for  exporters  to  find  markets.  Still,  some  of  the  ablest 
men  in  the  Convention  were  opposed  to  denying  Congress 
this  power,  on  the  ground  that  exports  would  be  a  fruitful 
source  of  revenue. 

430.  Preferences  as  to  Ports. — The  Constitution  was 
framed  on  the  principle  that  the  people  of  the  diflferent 
States  are  entitled  to  equal  rights  and  privileges;  and  the 
prohibition  of  any  preference  of  the  ports  of  one  State  to 
those  of  another  sprang  from  this  principle.  This  is  in  the 
same  line  as  the  first  clause  of  the  previous  section  requiring 
all  duties,  imposts,  and  excises  to  be  uniform  throughout 
the  United  States. 

431.  Entering  and  Clearing. — To  enter  and  to  clear  are 
technical  terms  relating  to  the  customhouse.  For  a  ship  to 
enter  is  to  report  her  arrival,  cargo,  etc.,  to  the  custom- 
house authorities ;  to  clear  is  to  obtain  from  the  same  author- 
ities the  necessary  papers  giving  her  leave  to  sail.  All  ships 
arriving  from  foreign  ports  must  enter,  all  ships  sailing  to 
such  ports  must  clear;  but  vessels  sailing  from  one  Ameri- 
can port  to  another  are  not  obliged  to  enter,  clear,  or  pay 
duties  in  the  ports  of  any  State  other  than  that  to  or  from 
which  they  may  be  bound.  The  first  part  of  the  clause  lim- 
its Congress ;  the  second  parf,  both  Congress  and  the  States. 

Section  9,  Clause  7. — No  money  shall  be  drawn  from  the  treasury 
but  in  consequence  of  appropriations  made  by  law ;  and  a  regular 
statement  and  account  of  the  receipts  and  expenditures  of  all  public 
money  shall  be  published  from  time  to  time. 

432.  Congress  Controls  the  Treasury. — This  clause  is 
a  limitation  of  the  executive  department.  It  puts  the  ex- 
penditure of  the  public  funds  in  the  hands  of  Congress,  just 
as  previous  clauses  put  the  raising  of  funds  in  its  hands. 

'  The  statement  and  account  of  receipts  and  expenditures  are 
found  in  the  annual  reports  of  the  Secretary  of  the  Treas- 
ury on  the  state  of  the  finances. 

The  ordinary  expenses  of  the  government  are  provided  for  an- 
nually in  general  appropriation  bills,  such  as  the  River  and  Harbor, 

AM.  GOV. — 16 


242  THE  AMERICAN  GOVERNMENT. 

Agricultural,  Army,  Navy,  Consular  and  Diplomatic,  Indian,  Mili- 
tary Academy,  Post-Office,  Deficiency,  District  of  Columbia,  Fortifi- 
cations, Legislative,  Executive,  and  Judicial,  Pension,  and  Sundry 
Civil  Bills.  In  these  bills  the  objects  for  which  the  appropriations 
are  made,  with  the  particular  amounts,  are  minutely  specified.  The 
Deficiency  Bill  provides  for  expenditures  not  fully  met  by  the  regu- 
lar appropriations  of  the  year  before. 

Section  9,  Clause  8. — No  title  of  nobility  shall  be  granted  by  the 
United  States ;  and  no  person  holding  any  office  of  profit  or  trust 
under  them  shall,  without  the  consent  of  the  Congress,  accept  of  any 
present,  emolument,  office,  or  title  of  any  kind  whatever,  from  any 
king,  prince,  or  foreign  state. 

433.  Titles  of  Nobility  and  Presents. — Titles  of  nobil- 
ity go  with  aristocratical  and  monarchical  institutions,  and 
are  repugnant  to  a  republican  society  and  government.  Mr. 
Hamilton  called  their  prohibition  the  corner  stone  of  repub- 
licanism. The  second  prohibition  of  the  clause  is  intended 
to  prevent  foreign  states  from  influencing  the  officers  of  our 
government  by  giving  them  gifts  and  titles.  In  former 
times  the  policy  of  one  nation  was  sometimes  largely  con- 
trolled by  another  in  this  way.  English  kings  once  did  not 
disdain  to  accept  largesses  from  the  kings  of  France. 
Presents  are  sometimes  made  by  foreign  powers  to  officers 
of  the  United  States  out  of  compliment,  but  they  either 
pass  into  the  custody  of  the  government,  or  Congress  gives 
those  for  whom  they  are  intended  permission  to  receive 
them. 

All  the  above  prohibitions  relate  to  national  officers  merely.  In 
1809  Congress  proposed,  but  the  States  did  not  ratify,  the  following 
amendment  to  the  Constitution :  "  If  any  citizen  of  the  United 
States  shall  accept,  claim,  receive,  or  retain  any  title  of  nobility  or 
honor,  or  shall,  without  the  consent  of  Congress,  accept  and  retain 
any  present,  pension,  office,  or  emolument  of  any  kind  whatever 
from  any  emperor,  king,  prince,  or  foreign  power,  such  person  shall 
cease  to  be  a  citizen  of  the  United  States,  and  shall  be  incapable  of 
holding  any  office  of  trust  or  profit  under  them,  or  either  of  them." 


CHAPTER  XXVII. 

THE  LIMITATIONS  OF  THE  STATES. 
Article  I. 

434.  General  Reasons. — Duly  to  limit  the  States  was  no 
less  important  than  duly  to  limit  the  Union.  In  1787  the 
States  were  strong,  the  Union  weak.  States  had  persist- 
ently neglected  to  discharge  their  duties  under  the  Confed- 
eration. Hence  it  was  almost  as  necessary  positively  to 
deny  them  powers  the  possession  of  which  was  inconsistent 
with  a  vigorous  general  government,  as.it  was  to  add  to  the 
powers  of  that  government. 

Section  10,  Clause  i. —  No  State  shall  enter  into  any  treaty,  alli- 
ance, or  confederation ;  grant  letters  of  marque  and  reprisal ;  coin 
money ;  emit  bills  of  credit ;  make  anything  but  gold  and  silver  coin 
a  tender  in  payment  of  debts ;  pass  any  bill  of  attainder,  ex  post  facto 
law,  or  law  impairing  the  obligation  of  contracts,  or  grant  any  title 
of  nobility. 

435.  Reasons  for  these  Prohibitions. — If  a  State  could 
enter  into  treaties,  alliances,  and  confederations,  and  grant 
letters  of  marque  and  reprisal,  the  nation  would  thereby  be 
drawn  into  difficulties,  and  the  Union  would  soon  be  broken 
up.  The  exercise  by  the  States  of  such  powers  would  make 
them  sovereign  States.  In  fact,  nearly  all  of  the  powers 
enumerated  in  this  clause  were  denied  to  the  States  in  the 
Ariticles  of  Confederation. 

436.  Bills  of  Credit. — The  Supreme  Court  has  defined 
bills  of  credit  as  "  paper  issued  by  the  sovereign  power  con- 
taining a  pledge  of  its  faith,  and  designed  to  circulate  as 
money."  Congress  and  the  States  issued  such  money  in 
large  quantities  in  the  Revolution ;  the  intolerable  evils  that 
these  bills  produced  were  fresh  in  the  minds  of  the  men 

(243) 


244  "^HE  AMERICAN  GOVERNMENT. 

who  framed  the  Constitution;  and,  to  prevent  the  recur- 
rence of  similar  evils,  they  voted  down  a  proposition 
authorizing  Congress  to  emit  bills  of  credit,  and  prohibited 
the  States  from  issuing  them.  According  to  Mr.  Madison, 
the  purpose  was  to  give  Congress  the  power  to  issue  bills 
not  having  the  legal-tender  quality,  but  to  prohibit  the 
States  absolutely. 

For  the  States  to  coin  money,  emit  bills  of  credit,  and  make  any- 
thing but  gold  and  silver  a  tender  in  payment  of  debts,  would  be 
repugnant  to  the  sovereignty  of  the  Union.  .Besides,  their  exercise 
of  these  powers  would  introduce  endless  confusion  into  the  monetary 
system  of  the  country,  as  is  well  illustrated  by  the  history  of  the 
Confederation  and  of  the  State  banks. 

437.  The  Obligation  of  a  Contract. — Chief-Justice 
Marshall  says  a  contract  is  "  an  agreement  in  which  a  party 
undertakes  to  do,  or  not  to  do,  a  particular  thing."  Accord- 
ingly, it  creates  duties  and  rights  between  two  or  more  par- 
ties. The  obligation  of  a  contract  is  its  binding  force  or 
sanction  upon  all  the  parties  concerned.  However,  this 
obligation  does  not  arise  unless  the  contract  is  one  that 
the  law  sanctions.  Thus,  a  man  who  agrees  to  pay  money 
without  an  equivalent  is  not  bound  to  pay  the  money,  be- 
cause such  a  contract  is  not  binding.  A  law  impairing  the 
obligation  of  a  contract  is  a  law  that  weakens  or  destroys 
its  binding  force.  Two  or  more  men  making  a  contract,  do 
so  with  reference  to  the  law  as  it  is  at  the  time,  and  no  law 
should  afterward  interfere  with  what  they  have  done. 

438.  The  Dartmouth  College  Case. — Judge  Cooley  says  no 
clause  of  the  Constitution  has  been  more  prolific  of  litigation,  and 
given  rise  to  more  animated  and  at  times  angry  controversy  than  this 
one  in  relation  to  contracts.  The  best-known  case  that  has  arisen 
under  it  is  the  Dartmouth  College  Case.*  The  New  Hampshire  leg- 
islature materially  changed  by  law  the  terms  and  conditions  of  the 
charter  of  Dartmouth  College,  granted  many  years  before.  This  law 
the  Supreme  Court  set  aside  in  1818,  on  the  ground  that  the  charter 
was  a  contract  between  the  State  and  the  college  corporation,  and 
that  the  law  impaired  it.    This  decision,  which  has  since  been  the 

'4  Wheaton  518. 


THE  LIMITATIONS  OF  THE  STATES.  245 

great  bulwark  of  vested  rights  in  the  United  States,  has  been  some- 
what modified  by  recent  decisions. 

439.  No  Prohibition  on  Congress. — Congress  is  not  prohibited 
from  impairing  contracts,  but  it  was  assumed  that  such  prohibition 
was  not  necessary.  It  has  been  held  that  the  Legal-Tender  Acts  had 
that  effect.  The  argument  is  that  contracts  requiring  the  payment 
of  money,  existing  in  1862-63  when  these  acts  were  passed,  were 
made  when  only  gold  and  silver  were  legal  money;  that  these  con- 
tracts called  for  coin,  or  its  equivalent,  to  satisfy  them ;  while  the 
acts  allowed  them  to  be  satisfied  with  depreciated  paper  money. 
Chief-Justice  Chase  thus  reasoned  in  1868,  but  the  Supreme  Court 
did  not  take  that  view. 

440.  The  Statute  of  Limitations.^ — The  phrase  "  law  impairing 
the  obligation  of  contracts  "  is  purely' technical.  It  is  the  business  of 
the  courts  to  declare  its  meaning,  and  to  adjust  it  to  other  parts  of 
our  jurisprudence.  The  Statute  of  Limitations,  which  exists  in  all 
English-speaking  countries,  declares  that  certain  rights  shall  cease 
if  they  are  not  asserted  or  prosecuted  within  a  certain  time.  For 
example,  title  to  land,  under  these  conditions,  lapses  in  twenty-one 
years.  The  Supreme  Court  has  decided '  that  such  statutes  do  not 
impair  the  obligation  of  contracts,  unless  they  are  made  retroactive. 
A  similar  decision  has  been  rendered  concerning  usury  laws. 

Section  10,  Clause  2. —  No  State  shall,  without  the  consent  of  the 
Congress,  lay  any  imposts  or  duties  on  imports  or  exports  except 
what  may  be  absolutely  necessary  for  executing  its  inspection  laws; 
and  the  net  produce  of  all  duties  and  imposts  laid  by  any  State  on 
imports  or  exports  shall  be  for  the  use  of  the  treasury  of  the  United 
States;  and  all  such  laws  shall  be  subject  to  the  revision  and  control 
of  the  Congress. 

441.  Inspection  Laws. — The  great  object  of  inspection 
laws  is  to  bring  certain  commodities  offered  for  sale,  as 
meats,  flour,  oil>  and  the  like,  up  to  a  given  standard  of 
quality.  This  is  in  the  interest  of  both  producer  and  con- 
sumer. The  inspector  examines  the  commodity,  and  marks 
the  cask  or  package.  Inspection  laws  cannot  be  kept  up 
without  expense,  and  the  above  clause  permits  the  States, 
without  asking  the  consent  of  Congress,  to  lay  such  duties 
on  exports  and  imports,  in  the  form  of  fees,  as  may  be  neces- 
sary to  defray  this  expense.     But  if  there  is  an  excess  of  fees 

'  Sturgis  V.  Crowninshield,  4  Whcaton  122, 


246  THE  AMERICAN  GOVERNMENT. 

collected,  over  and  above  defraying  such  cost,  then  the  States 
must  pay  such  excess  into  the  national  treasury.  Moreover, 
Congress  has  full  power  to  revise  and  control  all  inspection 
laws.  To  permit  the  States  to  levy  taxes  upon  imports  and 
exports  for  a  wider  purpose  than  to  enforce  these  important 
laws,  would  prevent  commerce  from  being  national. 

442.  Limits  of  this  Power. — How  far  the  provision  in  regard 
to  inspection  laws  extends,  is  a  question  that  has  been  often  before 
the  Supreme  Court.  A  law  of  Maryland  requiring  importers  of 
goods  in  bales  or  packages  to  take  out  a  license,  was  declared  uncon- 
stitutional. Chief-Justice  Marshall '  laid  down  the  rule  that  the 
right  to  import  goods  involves'  the  right  to  sell  them,  and  that  so 
long  as  such  goods  remain  in  the  original  packages  they  are  a  part 
of  the  foreign  commerce  of  the  country,  and  not  taxable  by  the  State. 
But  licenses  imposed  by  States  on  retail  liquor  dealers  are  constitu- 
tional, even  when  the  liquors  sold  are  imported,  such  dealers  not 
being  importers,  or  not  selling  the  liquors  in  bulk.*  To  raise  money 
for  the  support  of  marine  hospitals,  Massachusetts  and  New  York 
enacted  laws  levying  taxes  upon  alien  passengers  arriving  in  their 
ports,  but  the  Supreme  Court  set  these  laws  aside  as  invasions  of  the 
right  of  Congress  to  regulate  commerce.* 

Section  10,  Clause  3. — No  State  shall,  without  the  consent  of  Con- 
gress, lay  any  duty  of  tonnage,  keep  troops  or  ships  of  war  in  time 
of  peace,  enter  into  any  agreement  or  compact  with  another  State, 
or  with  a  foreign  power,  or  engage  in  war,  unless  actually  invaded, 
or  in  such  imminent  danger  as  will  not  admit  of  delay. 

443.  Tonnage  Duties. — A  duty  of  tonnage  is  a  tax  laid 
on  ships  according  to  their  burden  or  carrying  capacity,  and 
is  computed  by  the  ton.  The  States  may.  tax  ships  belonging 
to  citizens  or  other  persons  residing  within  their  borders  as 

■  other  property  is  taxed,  according  to  their  value.  The  im- 
position of  tonnage  duties  by  States  would  be  plainly  incon- 
sistent with  the  regulation  of  commerce  by  Congress;  it 
would  soon  derange  the  whole  commercial  system,  and 
might  even  throw  the  country  back  into  the  commercial 
condition  that  existed  before  1789. 

'  Brown  v.  Maryland,   12  Wheaton  419. 

*  The  License  Cases,  5  Howard  504. 

*  The  Passenger  Cases,  7  Howard  283. 


THE  LIMITATIONS  OF  THE  STATES.  247 

444.  State  Troops,  Ships  of  War,  etc. — The  concluding 
prohibitions  of  the  clause  are  absolutely  essential  to  the  peace 
and  security,  and  even  the  existence,  of  the  nation.  If  the 
States  could  keep  troops  or  ships  of  war  in  time  of  peace, 
enter  into  agreements  or  compacts  with  one  another  and 
with  foreign  powers,  and  engage  in  war  when  not  invaded 
or  in  imminent  danger,  the  Union  would,  in  a  short  time,  be 
wholly  broken  up.  Unions  would  be  formed  within  the 
Union ;  State  treaties  with  foreign  powers  would  be  made ; 
war  would  result,  and  disintegration  would  surely  follow. 

445.  The  States  not  Sovereign. — It  is  idle  to  hold  that 
any  body  politic  is  sovereign,  in  the  proper  sense  of  the  word, 
which  is  denied  such  powers  as  entering  into  treaties  and 
compacts,  coining  money,  emitting  bills  of  credit,  laying  im- 
posts and  tonnage  taxes,  keeping  troops  and  ships  of  war  in 
times  of  peace,  and  engaging  in  war. 

Note. — The  difficulty  of  adjusting  the  powers  of  Congress  over  commerce 
to  the  rights  of  the  States,  has  been  remarked  in  Chapter  XXV. 

Mr.  Desty  groups  the  following  points  that  had  been  adjusted,  with 
appropriate  citations:  "  Private  interest  must  be  made  subservient  to  the 
general  interest  of  the  community,  so  the  power  of  States  over  police  regu- 
lations is  supreme.  A  State  law  intended  as  a  regulation  of  police  is  not  a 
regulation  of  commerce,  but  the  police  power  cannot  be  extended  over  inter- 
state transportation  of  the  subjects  of  commerce.  A  State  may  regelate  the 
position  of  vessels  in  her  harbors  or  rivers,  or  may  regulate  the  speed  of 
steamers  or  railroad  trains.  States  may  prohibit  the  introduction  of  slaves, 
or  exclude  paupers,  criminals,  diseased  or  infirm  persons,  and  persons  afflicted 
with  contagious  diseases,  and  may  exact  a  bond  to  indemnify  from  expense  of 
maintaining  passengers  after  arrival;  but  to  exclude  passengers  who  are  in 
possession  of  their  faculties,  and  neither  paupers  nor  criminals,  is  a  regulation 
of  commerce  which  the  State  cannot  exercise.  So  a  State  cannot  legislate  to 
prevent  the  importation  of  cattle  during  certain  seasons  of  the  year,  this  being 
more  than  an  exercise  of  its  police  powers;  but  it  may  regulate  the  introduction 
of  game  during  certain  months;  but  forbidding  the  exportation  of  game,  law- 
fully killed  within  the  State,  is  unconstitutional.  A  State  may  forbid  the  sale 
of  an  illuminating  liquid  below  a  certain  standard,  or  regulate  the  use  of 
explosives  and  dangerous  oils  and  substances,  or  may  remove  the  same.  The 
police  power  extends  to  the  protection  of  the  lives,  limbs,  health,  comfort, 
morals,  and  quiet  of  all  persons,  and  the  protection  of  all  property  in  the 
State.  This  clause  does  not  interfere  with  the  rights  of  States  to  enact 
inspection,  quarantine,  and  health  laws,  as  well  as  laws  regulating  internal 
commerce,  or  commerce  •  local  in  its  character,  as  requiring  the  master  of  a 
vessel  to  report  the  names,  ages,  and  origin  of  passengers.  Inspection  laws 
are  not  burdens  on  trade,  nor  unjust  discriminations,  so  long  as  they  are 
reasonable;  but  a  statute  requiring  vessels  to  furnish  statements  of  the  name 
and  owner  is  void  as  to  United  States  vessels.  So,  a  statute  relating  to  the 
survey  of  sea-going  vessels  is  a  regulation  of  commerce,  and  void."—  Tht 
Constitution  of  the  United  States,  p.  73;  also,  p.  298. 


CHAPTER  XXVIII. 

VESTING  THE  EXECUTIVE  POWER. 

Article  II. 

Section  i,  Clause,  i. —  The  executive  power  shall  be  vested  in  a 
President  of  the  United  States  of  America.  He  shall  hold  his  office 
during  the  term  of  four  years,  and,  together  with  the  Vice  President, 
chosen  for  the  same  term,  be  elected  as  follows. 

446.  Need  of  a  National  Executive. — With  the  throw- 
ing off  of  allegiance  to  the  British  crown,  the  States  ceased 
to  be  subject  to  any  common  executive  authority.  The  gov- 
ernors were  but  State  executives.  The  President  of  Con- 
gress was  merely  a  presiding  officer.  Congress  had  some 
slight  executive  powers,  but  there  was  no  proper  national 
executive.  Much  of  the  weakness  of  the  Confederation  was 
due  to  this  fact,  and  there  was  in  the  Convention  of  1787 
practical  unanimity  of  opinion  that  this  defect  must  be  cured. 
Accordingly,  the  Virginia  plan  and  the  Jersey  plan,  Pinck- 
ney's  draft  and  Hamilton's  draft,  all  provided  for  an  execu- 
tive department. 

447.  An  Independent  Executive. — The  leading  mem- 
bers of  the  Convention  were  determined  to  make  the  execu- 
tive department  thoroughly  independent  of  the  other  depart- 
ments, and  especially  of  the  legislature.  Mr.  Madison  said : 
"  Experience  in  all  the  States  had  evinced  a  powerful  tend- 
ency in  the  legislature  to  absorb  all  power  into  its  vortex. 
This  was  the  real  source  of  danger  to  the  American  constitu-* 
tions,  and  suggested  the  necessity  of  giving  every  defensive 
authority  to  the  other  departments  that  was  consistent  with 
republican  principles."  ^     And  Mr.  Hamilton :     "  We  have 


^  Elliot,   Debates,  Vol.   V.,   p.   345. 
(248) 


VESTING  THE  EXECUTIVE  POWER.  249 

seen  that  the  tendency  of  repubUcan  governments  is  to  an. ag- 
grandizement of  the  legislative  at  the  expense  of  the  other 
departments."  ^ 

448.  A  Single  Executive. — The  framers  of  the  Constitu- 
tion were  more  or  less  jealous  of  executive  power.  To  pre- 
vent even  the  semblance  of  monarchy,  some  of  them  favored 
an  executive  that  should  consist  of  two  or  more  persons, 
chosen  from  the  same  number  of  divisions  of  the  Union. 
On  this  question  the  Virginia  plan  was  silent,  the  Jersey  plan 
proposed  a  plural  executive,  while  Pinckney  and  Hamilton 
each  proposed  a  single  executive.  By  a  vote  of  eight  States 
to  three  the  Convention,  in  committee  of  the  whole,  adopted 
the  unitary  plan. 

Mr,  Randolph  stated  that  the  arguments  against  a  single  executive 
were  these:  (i)  the  people  were  opposed  to  it,  and  it  would  never 
have  their  confidence;  (2)  it  was  unnecessary;  and  (3)  a  single  chief 
magistrate  would  commonly  come  from  the  central  part  of  the 
Union,  and  consequently  the  remote  parts  would  not  be  on  an  equal 
footing.  It  was  replied  that  a  plurality  of  magistrates  chosen  for 
the  same  number  of  districts  would  lead  to  constant  struggles  for 
local  advantage ;  that  the  executive  pov.er  would  be  weakened  by  its 
divisions  and  animosities ;  that  the  States  all  had  single  executives ; 
that  a  plural  executive  would  be  particularly  ill-adapted  to  controlling 
the  militia,  the  army,  and  the  navy ;  that  the  animosities  arising  from 
a  tripartite  executive  would  not  only  interrupt  the  public  administra- 
tion, but  diffuse  their  poison  through  the  other  branches  of  govern- 
ment, through  the  States,  and  at  length  through  the  people  at  large.* 

449.  Style  and  Title  of  the  Executive. — Hamilton  pro- 
posed that  the  chief  magistrate  be  called  Governor,  Pinckney 
that  he  be  called  President.  A  report  submitted  to  the  Con- 
vention proposed  that  his  style  should  be  The  President  of 
the  United  States,  and  his  title.  His  Excellency.  President 
was  already  familiar  to  the  country ;  the  Albany  plan  of  1754 

Contained  the  name  and  recommended  such  an  office;  Con- 
gress "had  a  president,  and  some  of  the  States  styled  their 
chief  magistrates  president.  So  this  style  was  generally  ap- 
proved. 

*  The  Federalist,  No.  49. 

'Elliot,  Debates,  Vol.  V.,  pp.  141,  149-151. 


250  THE  AMERICAN  GOVERNMENT. 

Soon  after  the  government  went  into  operation,  some  of  the  Fed- 
eralists in  Congress  proposed  the  style,  His  Highness,  the  President 
of  the  United  States,  and  Protector  of  their  Liberties.  It  was  then 
agreed  that  the  President  should  be  addressed  in  official  documents 
simply  as  President  of  the  United  States. 

450.  Length  of  Term  and  Reeligibility. — Hamilton 
proposed  that  the  President  should  serve  during  good  be- 
havior. A  single  term  of  seven  years  was  the  declared  pref- 
erence of  the  Convention  almost  to  its  close,  when,  owing  to 
a  change  in  the  plan  of  election  that  had  previously  been 
agreed  upon,  the  term  of  four  years  was  adopted,  and  the 
restriction  to  a  single  term  was  struck  out. 

The  wisdom  of  shortening  the  term  and  of  making  the  President 
eligible  for  a  second  term  has  been  doubted  from  the  first,  and 
especially  in  recent  times.  The  main  argument  against  a  second 
term  is  that  the  President  will  be  apt  to  use  the  power  that  his  office 
gives  him,  as  the  power  to  make  appointments  to  office,  to  promote 
his  reelection.  It  has  therefore  been  often  suggested  that  the  Con- 
stitution be  so  amended  as  to  limit  the  President  to  one  term  of  six 
or  seven  years. 


CHAPTER  XXIX. 

■    ELECTION  OF  PRESIDENT  AND  VICE  PRESIDENT* 

Article  II. 

Section  I,  Clause  2. —  Each  State  shall  appoint,  in  such  manner  as 
the  legislature  thereof  may  direct,  a  number  of  electors  equal  to 
the  whole  number  of  Senators  and  Representatives  to  which  the 
State  may  be  entitled  in  the  Congress;  but  no  Senator  or  Repre- 
sentative, or  person  holding  an  office  of  trust  or  profit  under  the 
United  States,  shall  be  appointed  an  elector. 

451.  Mode  of  Election. — A  far  more  troublesome  ques- 
tion than  that  of  a  single  or  plural  executive  was,  How  shall 
the  executive  be  chosen?  It  is  said  to  have  occupied  more 
than  one  seventh  of  all  the  time  of  the  Convention.  The 
question  may  be  stated  in  this  mor^  definite  form:  How 
can  the  executive  be  chosen  and  at  the  same  time  be  inde- 
pendent of  the  power  that  chooses  him?  Many  different 
plans  were  proposed,  as,  election  by  the  houses  of  Congress, 
by  the  Senate,  by  the  people  voting  en  masse,  by  the  people 
voting  in  districts ;  election  by  electors  chosen  by  the  gov- 
ernors of  the  States,  by  electors  chosen  by  the  people,  by 
electors  chosen  by  the  State  legislatures,  by  electors  chosen 
by  lot  from  Congress,  by  secondary  electors  chosen  by  pri- 
mary electors,  and  by  electors  appointed  as  the  State  legisla- 
tures should  direct. 

452.  The  Convention's  First  Decision. — The  Virginia 
plan  proposed  that  the  executive  should  be  chosen  by  Con- 
gress, and  this  mode  of  election  was  the  decided  preference 
of  the  Convention  until  near  the  end  of  its  session.  Many 
times  it  declared  in  favor  of  this  mode  by  decided  votes. 
And  yet,    September  4,   the   Committee  of  Detail  recom- 

*  See  references  to  Chapter  XXX. 

(asO 


252  THE  AMERICAN  GOVERNMENT. 

mended  election  by  electors,  and  two  days  later  this  plan  was 
adopted  by  a  vote  as  decided  as  the  votes  that  had  previously 
approved  the  Virginia  plan.  The  electoral  plan  appears  to 
have  been  borrowed  from  Maryland,  in  which  State  it  was 
used  for  the  election  of  State  senators. 

453.  Objections  to  Election  by  Congress. — The  Convention 
finally  concluded  that  the  independence  of  the  President  could  not 
be  secured  if  Congress  elected  him.  It  was  admitted  that  a  reelec- 
tion by  Congress,  or  the  possibility  of  a  reelection,  would  lead  to 
serious  evils.  The  President  would  be  little  more  than  a  creature  of 
Congress.  Limiting  him  to  a  single  term,  it  was  finally  concluded, 
would  not  meet  the  difficulty;  and  so  the 'electoral  plan  was  adopted 
because  it  would,  as  was  thought,  absolutely  exclude  the  national 
legislature  from  any  share  in  the  election  of  the  President.  This 
jealousy  of  Congress,  as  well  as  of  all  official  influence  in  respect  to 
the  election,  appears  in  the  prohibition :  "  No  Senator  or  Representa- 
tive, or  person  holding  an  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  elector." 

454.  Objections  to  Popular  Election. — On  the  other  hand,  it 
was  thought  impolitic  to  adopt  any  of  the  plans  of  popular  election 
that  were  proposed.  It  w§s  thought  as  necessary  to  avoid  the  "  heats 
and  ferments  "  of  a  popular  contest  as  the  intrigue  and  corruption  of 
a  congressional  contest.  That  calmness  of  mind,  consideration,  and 
superiority  to  temporary  feeling  which  were  essential,  could  not  thus 
be  secured, —  so  the  Convention  argued. 

455.  The  Electoral  Plan. — So  the  Convention  very  de- 
liberately adopted  one  of  the  electoral  plans  that  had  been 
proposed.  The  President  should  be  chosen  by  State  electors, 
appointed  in  such  manner  as  the  legislatures  might  deter- 
mine. It  was  believed  that  State  colleges  of  electors,  chosen 
for  their  fitness,  would  elect  better  Presidents  than  could  be 
elected  by  either  Congress  or  the  people.  To  prevent  the 
excitement  and  maneuvering  that  might  attend  a  single 
meeting  of  all  the  electors  in  one  place  (as  well,  probably, 
as  to  save  expense) ,  it  was  provided,  in  the  next  clause,  that 
they  should  meet  in  their  respective  States  to  give  their 
ballots. 

The  electors  of  a  State  collectively  are  commonly  called  an  elec- 
toral college;  the  groups  of  electors  of  all  the  States,  the  electoral 
colleges.    The  name  is  found  in  a  law  of  1845  that  empowers  each 


ELECTION  OF  THE  PRESIDENT.  253 

State  to  fill  vacancies  that  may  arise  in  the  number  of  its  electors. 
It  had  been  used  informally  since  1821. 

456.  Plans  of  Appointing  Electors. — It  is  left  to  the 
State  legislatures  to  decide  the  manner  in  which  electors 
shall  be  appointed.  In  the  early  years  of  the  republic,  as 
many  as  four  different  methods  were  used :  appointment  by 
the  houses  of  the  legislature  voting  jointly,  by  the  houses 
voting  concurrently,  by  the  people  of  the  States  voting  State 
tickets,  and  by  the  people  voting  in  districts.  Evidently  the 
last  gives  the  freest  scope  to  public  opinion,  and  is  also  the 
farthest  removed  from  the  ideas  of  1787.  In  1842  Congress 
adopted  the  district  plan  for  the  election  of  Representatives, 
but  the  States  have  abandoned  it  as  a  mode  of  appointing 
electors.  In  1891  the  legislature  of  Michigan  passed  a  law 
enacting  that  the  representative  electors  of  that  State  should 
be  elected  in  and  by  the  same  districts  as  the  Representatives, 
and  the  senatorial  electors  in  and  by  two  senatorial  electoral 
districts,  which  districts  the  legislature  also  duly  constituted ;. 
but  two  years  later  the  law  was  repealed. 

457.  First  Mode  of  Procedure. — Four  Presidents  were 
chosen  according  to  the  method  that  the  Convention  incor- 
porated in  the  original  clause  3  of  this  section.  It  read  as 
follows : 

The  electors  shall  meet  in  their  respective  States  and  vote  by  bal- 
lot for  two  persons,  of  whom  one,  at  least,  shall  not  be  an  inhabitant 
of  the  same  State  with  themselves.  And  they  shall  make  a  list  of  all 
the  persons  voted  for,  and  of  the  number  of  votes  for  each ;  which 
list  they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  the 
government  of  the  United  States,  directed  to  the  President  of  the 
Senate.  The  President  of  the  Senate  shall,  in  the  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  certificates,  and 
the  votes  shall  then  be  counted.  The  person  having  the  greatest 
number  of  votes  shall  be  the  President,  if  such  number  be  a  majority 
of  the  whole  number  of  electors  appointed ;  and  if  there  be  more 
than  one  who  have  such  majority,  and  have  an  equal  number  of 
votes,  then  the  House  of  Representatives  shall  immediately  choose 
by  ballot  one  of  them  for  President ;  and  if  no  person  have  a  major- 
ity, then  from  the  five  highest  on  the  list  the  said  House  shall  in 
like  manner  choose  the  President.    But  in  choosing  the  President. 


254  THE  AMERICAN  GOVERNMENT. 

the  votes  shall  be  taken  by  States,  the  representation  from  each 
State  having  one  vote;  a  quorum  for  this  purpose  shall  consist  of  a 
member  or  members  from  two  thirds  of  the  States,  and  a  majority 
of  all  the  States  shall  be  necessary  to  a  choice.  In  every  case,  after 
the  choice  of  the  President,  the  person  having  the  greatest  number 
of  votes  of  the  electors  shall  be  the  Vice  President.  But  if  there 
should  remain  two  or  more  who  have  equal  votes,  the  Senate  shall 
choose  from  them  by  ballot  the  Vice  President. 

458.  First  Three  Presidential  Elections. — Ten  States 
participated  in  the  election  of  1789;  there  were  69  electors, 
and  12  persons  voted  for.  Washington  received  69  votes, 
John  Adams  34,  and  all  others  35.  In  1792  there  were  15 
States,  132  electors,  and  5  persons  voted  for.  Washington 
had  132  votes,  Adams  'jy,  and  the  three  other  persons  55. 
In  1796  there  were  16  States,  138  electors,  and  13  persons 
voted  for.  John  Adams  had  71  votes,  and  Thomas  Jeffer- 
son 68. 

459.  Election  of  1800. — At  the  election  of  1800  there 
were  16  States,  138  electors,  and  5  persons  voted  for. 
Thomas  Jefferson  and  Aaron  Burr,  the  Democratic-Repub- 
lican candidates,  had  each  a  majority  of  the  electors  ap- 
pointed, but  they  also  had  the  same  number,  73.  The  party 
intended  Jefferson  for  the  first  place  and  Burr  for  the  sec- 
ond ;  but  in  their  eagerness  to  elect  the  Vice  President  as  well 
as  the  President,  every  elector  who  voted  for  Jefferson  had 
also  voted  for  Burr.  Hence  there  was  no  election,  and  the 
House  of  Representatives  had  to  choose  between  the  two 
men.  For  35  ballots  occupying  7  days,  during  which  the 
House  was  in  continuous  session,  the  vote  stood :  Jefferson 
8  States,  Burr  6,  divided  2.  This  result  was  brought  about 
by  the  Federalists  voting  for  Burr.  The  country  was  filled 
with  excitement,  and  threats  of  disunion  were  heard.  But 
on  the  thirty-sixth  ballot,  one  Federalist  from  Vermont  and 
4  from  Maryland  declined  to  vote,  which  gave  those  States 
to  Jefferson,  while  the  States  of  Delaware  and  South  Caro- 
lina cast  blank  votes ;  so  the  final  vote  stood :  Jefferson  10, 
Burr  4,  blank  2. 


ELECTION  OF  THE  PRESIDENT.  255 

460.  Amendment  XII. — It  was  now  evident  that  the 
electoral  plan  was  not  working  as  its  authors  had  expected  it 
to  work.  It  was  plain  that  it  might  lead  to  the  election  of  a 
President  whom  the  citizens  and  electors  did  not  intend  for 
that  office,  and  so  wholly  defeat  the  national  will.  To  pre- 
vent this  result,  as  well  as  the  recurrence  of  a  contest  like 
that  of  1800,  Amendment  XII.  of  the  Constitution  was  pro- 
posed and  ratified.     It  took  eflfect  in  1804,  and  is  as  follows : 

Amendment  XIV. —  The  electors  shall  meet  in  their  respective 
States,  and  vote  by  ballot  for  President  and  Vice  President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same  State  with 
themselves ;  they  shall  name  in  their  ballots  the  person  voted  for  as 
President,  and  in  distinct  ballots  the  person  voted  for  as  Vice  Presi- 
dent, and  they  shall  make  distinct  lists  of  all  persons  voted  for  as 
President,  and  of  all  persons  voted  for  as  Vice  President,  and  of  the 
number  of  votes  for  each,  which  lists  they  shall  sign  and  certify, 
and  transmit  sealed  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  President  of  the  Senate.  The  President  of 
the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Repre- 
sentatives, open  all  the  certificates,  and  the  votes  shall  then  be 
counted.  The  person  having  the  greatest  number  of  votes  for  Presi- 
dent shall  be  the  President,  if  such  number  be  a  majority  of  the 
whole  number  of  electors  appointed ;  and  if  no  person  have  such  ma- 
jority, then  from  the  persons  having  the  highest  numbers  not  ex- 
ceeding three  on  the  list  of  those  voted  for  as  President,  the  House 
of  Representatives,  shall  choose  immediately,  by  ballot,  the  President. 
But  in  choosing  the  President,  the  votes  shall  be  taken  by  States,  the 
representation  from  each  State  having  one  vote;  a  quorum 'for  this 
purpose  shall  consist  of  a  member  or  members  from  two  thirds  of 
the  States,  and  a  majority  of  all  the  States  shall  be  necessary  to  a 
choice.  And  if  the  House  of  Representatives  shall  not  choose  a 
President,  whenever  the  right  of  choice  shall  devolve  upon  them, 
before  the  fourth  day  of  March  next  following,  then  the  Vice  Presi- 
dent shall  act  as  President,  as  in  the  case  of  the  death  or  other  con- 
stitutional disability  of  the  President.  The  person  having  the  great- 
est number  of  votes  as  Vice  President  shall  be  the  Vice  President, 
if  such  number  be  a  majority  of  the  whole  number  of  electors  ap- 
pointed, and  if  no  person  have  a  majority,  then  from  the  two  high- 
est numbers  on  the  list,  the  Senate  shall  choose  the  Vice  President; 
a  quorum  for  the  purpose  shall  consist  of  two  thirds  of  the  whole 
number  of  Senators,  and  a  majority  of  the  whole  number  shall  be 
necessary  to  a  choice.    But  no  person  constitutionally  ineligible  to 


256  THE  AMERICAN  GOVERNMENT. 

the  office  of  President  shall  be  eligible  to  that  of  Vice  President  of 
the  United  States.* 

461.  Election  of  1825. — Only  once  since  1800  has  the 
election  of  President  gone  to  the  House  of  Representatives. 
In  1824  Andrew  Jackson  received  99  electoral  votes,  John 
Quincy  Adams  84,  W.  H.  Crawford  41,  and  Henry  Clay  37. 
A  majority  was  132  votes.  Mr.  Clay  was  excluded  from  the 
further  competition  by  the  rule  limiting  the  choice  to  the 
three  highest  candidates  on  the  list,  and  his  following  in 
the  House  went  to  Mr.  Adams,  who  was  elected.  The  vote 
stood:  Adams,  13  States;  Jackson,  7;  Crawford,  4.  John 
C.  Calhoun  received  182  electoral  votes  for  Vice  President, 
and  was  declared  elected.  This  election,  like  that  of  1800, 
was  attended  by  much  excitement.  General  Jackson  had  re- 
ceived a  large  plurality  of  the  popular  vote  as  well  as  of  the 
electoral  vote,  and  he  and  his  friends  charged  that  there  was 
a  bargain  and  sale  between  Adams  and  Clay,  especially  as 
Clay  was  made  Secretary  of  State.  At  the  time  there  was 
much  talk  of  amending  the  Constitution  so  as  to  exclude  the 
House  from  all  participation  in  future  elections,  but  nothing 
was  done  in  that  direction. 

462.  Election  of  1876. — The  election  of  1876  was,  with 
the  exception  of  that  of  1800,  the  most  exciting  and  danger- 
ous one  in  our  history.  Of  the  369  electors,  184  were  in 
favor  of  Tilden  and  Hendricks,  the  Democratic  candidates ; 
164  in  favor  of  Hayes  and  Wheeler,  the  Republican  candi- 
dates ;  while  from  South  Carolina,  Florida,  Louisiana,  and 
Oregon  there  were  plural  returns.  In  all  21  votes  were  in 
dispute.  Two  questions  arose:  Which  are  the  legal  votes 
for  these  four  States?  and,  Whb  shall  determine  which  are 
legal?  The  second  was  the  practical  question,  and  nothing 
in  the  laws,  National  or  State,  or  in  the  practice  iri  counting 
previous  votes,  answered  it  directly.     This  question  filled 

*  This  amendment  was  not  made  without  difficulty.  In  one  Congress  it 
failed  to  secure  the  requisite  majority,  and  it  finally  passed  the  House  of 
Representatives,  December  12,  1803,  three  years  after  the  election  that  led  to 
it,  only  by  the  Speaker's  vote.  Nearly  a  year  more  passed  before  the  necessary 
number  of  ratifications  was  obtained,  and  then  the  vote  stood  13  to  4. 


ELECTION  OF  THE  PRESIDENT.  257 

Congress  and  the  country  with  heat  and  tumult  throughout 
the  winter  of  1876-77. 

463.  The  Electoral  Commission.— The  Senate  was  Re- 
publican and  the  House  of  Representatives  Democratic,  and 
it  was  well  known  in  advance  that  the  houses  would  not 
agree  when  the  time  came  to  count  the  votes.  Congress 
accordingly  created  an  Electoral  Commission,  for  that  case 

'  only,  consisting  of  5  Senators,  5  Representatives,  and  5  Jus- 
tices of  the  Supreme  Court,  with  power  to  decide  which  of 
the  disputed  votes  should  be  counted.  After  listening  to 
lengthy  arguments  pro  and  con,  the  commission  decided, 
8  to  7,  that  the  Republican  votes  from  all  the  States  in  dis- 
pute were  the  legal  ones,  and  the  Republican  candidates  were 
declared  elected,  185  votes  to  184. 

464.  Law  of  1887. — Serious  difficulties  in  the  election  of 
President  had  now  occurred  in  1800,  1824,  and  1876.  More- 
over, such  difficulties  would  have  occurred  at  other  times,  as 
in  1865  and  1869,  had  not  the  same  political  party  controlled 
large  majorities  in  both  houses  of  Congress.  Experience 
had  therefore  proved  that  presidential  elections  were  fraught 
with  serious  dangers  to  the  republic.  To  meet  these  points 
of  danger,  Congress  passed,  in  1887,  an  "  Act  to  provide  for 
and  regulate  the  counting  of  votes  for  President  and  Vice 
President,  and  the  decision  of  questions  arising  therein." 
Section  2  of  this  act  makes  the  determination  of  the  "State 
authorities,  under  State  laws  previously  passed,  final  in  all 
cases  of  disputed  appointments  of  electors,  thus  answering 
the  principal  question  of  1877.  Subsequent  sections  pre- 
scribe the  mode  of  procedure  in  cases  of  objection  to  a  single 
return  or  of  plural  returns  from  any  State.  This  law, 
which  is  very  minute  in  its  provisions,  removes  from  a  presi- 
dential election  many  of  the  dangers  that  had  previously 
attended  it. 

465.  The  Vice  President. — "  If  the  House  of  Repre- 
sentatives shall  not  choose  a  President,  whenever  the  right 
of  choice  shall  devolve  upon  them,  before  the  fourth  day  of 
March  next  following,  then  the  Vice  President  shall  act  as 

AM.  GOV. 17 


258  THE  AMERICAN  GOVERNMENT. 

President,  as  in  case  of  the  death  or  other  constitutional  dis- 
ability of  the  President."  Such  a  case  as  this  has  never  oc- 
curred. If  no  candidate  for  Vice  President  has  a  majority 
of  the  votes  of  the  electors  appointed,  then  the  Senate  must 
choose  one  of  the  persons  having  the  two  highest  numbers 
on  the  list  for  Vice  President.  R.  M.  Johnson  lacked  one 
vote  of  an  election  in  1836,  and  the  Senate  promptly  elected 
him.  When  the  election  of  the  President  goes  to  the  House, 
and  the  election  of  the  Vice  President  to  the  Senate,  the  Vice 
President  may  be  chosen  first. 

Section  1,  Clause  3. —  The  Congress  may  determine  the  time  of 
choosing  the  electors,  and  the  day  on  which  they  shall  give  their 
votes ;  which  day  shall  be  the  same  throughout  the  United  States. 

466.  Days  Fixed. — The  Continental  Congress  appointed 
the  first  Wednesday  in  January,  1789,  as  the  day  for  choos- 
ing the  first  electors;  the  first  Wednesday  in  February  as 
the  day  for  the  electors  to  give  their  votes,  and  the  first 
Wednesday  in  March  as  the  day  for  the  new  government  to 
go  into  operation.  In  1792  Congress  enacted  that  the  ap- 
pointment of  electors  should  be  made  within  thirty-four 
days  preceding  the  first  Wednesday  of  December,  every 
fourth  year;  and  this  rule  continued  in  force  until  1845, 
when  Congress  made  the  day  uniform  throughout  the 
Union, —  the  Tuesday  next  after  the  first  Monday  in  Novem- 
ber. 'From  1792  to  1887  the  electors  gave  their  votes  on  the 
first  Wednesday  in  December ;  the  present  rule  is  the  second 
Monday  in  January.  The  Old  Congress  did  not  fix  the  day 
for  opening  the  certificates  and  counting  the  votes  in  1789; 
it  was  done  April  16,  but  since  that  date  the  rule  has  been 
the  second  Wednesday  of  February.  The  propriety  of  uni- 
form days  for  appointing  electors,  and  for  the  casting  of 
their  votes,  throughout  the  Union,  is  manifest. 

The  first  Wednesday  in  March,  1789,  was  the  fourth  day  of  that 
month.  Congress  enacted  in  1792:  "That  the  term  of  four  years 
for  which  the  President  and  Vice  President  shall  be  elected  shall  in 
all  cases  commence  on  the  fourth  day  of  March  next  succeeding  the 
day  on  which  the  votes  of  the  electors  shall  have  been  given." 
Amendment  XII.  makes  this  day  a  part  of  the  Constitution  itself. 


ELECTION  OF  THE  PRESIDENT. 


259 


The  following  table  is  a  partial  exhibit  of  the  methods  that  have 
been  employed  in  appointing  electors.  (The  table  is  copied,  with 
corrections,  from  The  Nation,  No.  1351.) 


Delaware 

Pennsylvania 

New  Jersey    . 

Georgia     .     . 

Connecticut    . 
Massachusetts 


Maryland  .  . 
South  Carolina  . 
New  Hampshire 


Virginia    .     . 

New   York     . 
North  Carolina 
Rhode  Island 

Vermont   . 


Kentucky 

Tennessee 

Ohio    .     . 

Louisiana 

Indiana 

Mississippi 

Illinois 

Alabama   . 

Maine 

Missouri   . 


Legislature. 


I 788-1828 

1800 

1788-1804 
1812 
I 788-1800 
1816-1824 
I 788-1820 
1800-1808 
1816 


1788-1864 
1800 


I 792- I 824 
1812 
I 792- I 796 
1792-1800 
1816 
I 792- I 796 
1796-1804 

1824 


District. 


1816 


I 788-1 796 

l8l2,'20-'24 
I 796-1832 


I 788-1 796 
1812-1816 

1828 
I 792- I 808 

1804 

I 804- I 824 
1824-1828 


1824 
1824-1828 


Gen'l  Ticket. 


832- 
788- 
804- 
824- 

816- 

828- 
824- 

828- 
788- 
836r 
868- 
788- 
804- 
800- 
824- 
832- 
816- 
800- 

824- 

828- 
832- 
804- 
828- 
824- 
824- 
828- 
824- 
832- 
824- 


796 
812 
888 
808 
888 
804 
888 
888 
804 
888 
792 


796 
888 
804 
888 
888 
888 


888 
888 
888 


888 
888 
888 


ai/' 


CHAPTER  XXX. 

THE  FAILURE  OF  THE  ELECTORAL  PLAN. 

References. 

Johnston's  articles,  "  The  Executive  in  United  States  History," 
"  Electors  and  the  Electoral  System,"  "  Electoral  Votes,"  and  "  Dis- 
puted Elections,"  in  Lalor's  Cyclopedia;  Stanwood,  History  of  Pres- 
idential Elections;  Bryce,  The  American  Commonwealth,  Chaps.  V., 
VIL,  VIIL ;  The  Presidential  Count;  A  Complete  Official  Record  of 
the  Proceedings  of  Congress  at  the  Counting  of  the  Electoral  Votes, 
etc.     (Published  by  D.  Appleton  &  Co.)  » 

It  was  formerly  supposed  that  the  electoral  method  of 
choosing  the  President  and  Vice  President  was  the  happy 
invention  of  the  Federal  Convention.  But  in  later  years 
attempts  have  been  made  to  find  an  original  for  it.  Some 
writers  have  seen  a  resemblance  between  this  plan  and  the 
election  of  the  Pope  by  the  college  of  cardinals.  Sir  H.  S. 
Maine  thought  the  Convention  was  influenced  by  the  consti- 
tution of  the  Holy  Roman  Empire,  according  to  which  the 
Emperor  was  chosen  by  seven  imperial  electors.  A  far  more 
probable  conjecture  is  that  the  framers  of  the  Constitution 
found  their  copy  in  provisions  of  the  constitution  of  Mary- 
land, 1776,  which  delegated  the  choice  of  the  fifteen  State 
senators  to  an  electoral  body  chosen  every  five  years  by  the 
qualified  electors  of  the  State.^  But  whether  invented  or 
copied,  the  electoral  scheme  has  failed  more  signally  to  ac- 
complish the  ends  for  which  it  was  designed  than  any  other 
part  of  the  Federal  Constitution.  Professor  Johnston,  who 
held  the  theory  of  invention,  remarks  that  the  system  is  al- 
most the  only  feature  of  the  Constitution  which  was  purely 
artificial,  and  not  a  natural  growth,  that  it  was  the  one  which 


Stevens:    The   Sources  of   the   Constitution,   pp.    152-154. 
(260) 


THE  FAILURE  OF  THE  ELECTORAL  PLAN.        261 

met  least  criticism  from  critics,,  and  warmest  praise  from 
The  Federalist,  and  that  democracy  had  ridden  right  over  it. 
The  plan  excluded  Congress  from  formal  participation  in 
choosing  the  executive,  but  it  did  not  shut  out  congressional 
influence ;  still  less  did  it  exclude  the  people,  or  prevent  those 
heats  and  ferments  that  the  members  of  the  Convention 
thought  it  so  necessary  to  shun.  Our  quadrennial  presi- 
dential elections  are  just  what  the  men  of  1787  supposed 
they  had  made  impossible.  Amendment  XII.  has  corrected 
the  particular  evils  that  it  was  designed  to  correct;  but  it 
has  not  hindered  in  the  slightest  degree  that  political  devel- 
opment which,  while  observing  all  the  forms  of  the  Consti- 
tution, has  wholly  defeated  the  object  of  the  electoral  sys- 
tem, viz.:  the  election  of  the  President  and  Vice  President 
by  independent  electors.  In  other  words,  the  constitution 
of  the  people  is  at  this  point  wholly  at  variance  with  the  con- 
stitution of  the  government. 

We  shall  therefore  take  a  general  view  of  the  process  by 
which  the  expected  operation  of  the  plan  has  been  frustrated. 

467.  Party  Government. — The  role  parties  play  in  the  politics 
of  the  country  was  not  foreseen  in  1787.  By  the  close  of  Washing- 
ton's second  administration,  party  fines  were  closely  drawn ;  and 
since  this  time,  save  during  the  Era  of  Good  Feeling  (1816-1824), 
there  have  been  two  powerful  political  parties,  nearly  matched  in 
strength,  one  or  the  other  of  which  has  elected  the  President.  Men 
divide  on  political  questions;  the  resulting  parties  are  resolved  on 
giving  effect  to  their  ideas  and  policies;  and  to  do  this,  organization 
and  party  machinery  become  necessary.  This  development  of  party 
government  it  is  that  has  completely  changed  the  operation  of  the 
electoral  plan.  How  this  came  about,  a  sketch  of  the  modes  of 
making  nominations  will  show. 

468.  Nomination  by  Consent. — In  1788  and  1792  Washington 
was  nominated  by  the  unanimous  voice  of  the  people,  without  dele- 
gates, conventions,  or  popular  assemblies.  Adams  was  nominated 
for  Vice  President  in  a  similar  way,  but  not  with  equal  unanimity. 
In  1796,  when  the  Federal  and  Democratic-Republican  parties  were 
already  formed,  Adams  and  Jefferson  were  designated  as  candidates 
by  the  common  consent  of  their  respective  parties,  and  in  1800  Adams 
and  Jefferson  were  again  named  in  much  the  same  way. 

469.  Nomination  by  Congressional  Caucus. — The  first  step  in 


262  THE  AMERICAN  GOVERNMENT. 

the  direction  of  making  nominations  by  congressional  caucus  was 
taken  in  1796,  when  the  Democratic-Republican  members  of  Con- 
gress agreed  to  support  Jefferson  and  Burr.  The  second  step  was 
taken  in  1800  when  Adams  and  Jefferson  were  named  as  presidential 
candidates  in  secret  caucuses  of  the  Federal  and  Republican  Senators 
and  Representatives.  But  the  first  regular  congressional  nominating 
caucus  was  held  in  1804,  when  the  Republican  members  nominated 
Jefferson  and  Clinton  for  President  and  Vice  President.  From  this 
time  until  1824  the  congressional  caucus  was  as  much  the  regular 
party  machine  for  making  nominations  as  the  national  convention 
is  now. 

470.  Nomination  by  State  Legislatures. — Owing  to  the  extinc- 
tion of  the  Federal  party  organization,  there  was  but  one,  or  more 
properly  speaking,  no,  political  party  in  the  Era  of  Good  Feeling. 
The  four  presidential  candidates  of  1824  had  all  belonged  to  the 
Democratic-Republican  party.  The  congressional  caucus  had  fallen 
into  disrepute.  A  small  number  of  Senators  and  Representatives 
nominated  W..  H.  Crawford,  of  Georgia,  for  President,  but  the  nomi- 
nation hindered  rather  than  helped  him.  The  candidates  of  1824 
really  stood  on  their  personal  merits.  Still,  legislative  caucuses,  leg- 
islatures, and  even  county  conventions  recommended  their  favorite 
statesmen  to  the  support  of  the  country.  Nominations  were  in  fact 
made  by  the  general  agreement  of  certain  sections  of  the  people. 
In  1828  they  were  made  in  much  the  same  way,  except  that  no  con- 
gressional caucus  was  held,  and  the  State  legislatures  took  a  more 
important  part. 

471.  Nomination  by  National  Conventions. — The  first  national 
convention  was  held  by  the  Anti-masons  in  1831,  and  nominated 
William  Wirt  for  President.  The  second  was  a  National-Republican 
convention  that  nominated  Henry  Clay,  also  in  183 1.  The  next  year 
the  Jackson  men,  or  the  Democratic  party  of  recent  times,  held  a 
convention  to  declare  their  "  highest  confidence  in  the  purity,  patri- 
otism, and  talents  of  Andrew  Jackson,"  who  had  already  been  nomi- 
nated by  local  conventions  and  State  legislatures  many  times  over, 
and  to  nominate  a  candidate  for  Vice  President.  Since  that  time 
national  conventions  have  been  regularly  held  by  the  several  par- 
ties, except  that  the  Whigs  held  none  in  1836. 

472.  The  Caucus  System. — At  first  national  conventions  were 
very  simple,  having  some  features  of  the  mass  convention,  but  now 
they  have  become  so  thoroughly  organized  as  to  constitute  real  party 
parliaments.  The  national  convention  is  the  crown  of  the  national 
caucus  system,  the  simplest  elements  of  which  are  seen  in  the  pri- 
mary meetings,  or  caucuses,  and  executive  committees  of  wards  and 
townships,  and  the  more  complex  forms  in  city,  county,  district,  and 


THE  FAILURE  OF  THE  ELECTORAL  PLAN.       263 

State  conventions  and  committees.  The  like  of  this  system  is  un- 
known in  any  other  country.  It  is  the  creature  of  purely  voluntary 
effort ;  it  is  no  part  of  the  Constitution  or  laws ;  and  yet  it  exerts 
an  enormous  influence  upon  the  local,  State,  and  National  govern- 
ments, and  upon  all  political  life.  Its  grand  object  is  to  increase 
party  strength  by  concentrating  it  upon  certain  chosen  ends. 

473.  Effect  of  the  Caucus  System. — The  most  striking  effect  of 
this  remarkable  development  of  party  organization  is  wholly  to  nul- 
lify the  constitutional  intent  in  electing  the  President  and  Vice  Pres- 
ident, while  all  the  constitutional  forms  are  scrupulously  kept.  That 
intent  was  that  the  electoral  colleges  shall  consist  of  men  wholly  un- 
committed to  particular  persons,  and  free  to  vote  for  the  fittest  men. 
This  was  really  the  case  in  1789  and  1792,  and  to  a  certain  extent  in 
1796;  but  since  the  last  of  these  dates  the  electors  have  been  them- 
selves appointed  in  almost  every  instance  with  a  distinct  understand- 
ing that  they  would  vote  for  particular  persons.  As  a  result,  the 
electors  have  no  freedom  whatever,  but  are  always  pledged  to  vote 
for  party  candidates. 

474.  Steps  in  the  Election  of  President  and  Vice  President — 
The  whole  course  of  progress  from  first  to  last  embraces  the  several 
steps  that  follow : 

1.  The  national  conventions  that  make  the  nominations  of  can- 
didates are  constituted  under  fixed  rules,  and  are  called  by  regularly 
appointed  committees.  The  conventions  of  the  Republican  and  Dem- 
ocratic parties  both  consist  of  four  delegates  at  large  from  each 
State,  and  twice  as  many  district  delegates  as  the  State  has  Repre- 
sentatives in  Congress. 

2.  In  each  State  every  political  party  participating  nominates 
two  electors  at  large,  sometimes  called  senatorial  electors,  and  as 
many  district  electors  as  it  contains  Representatives'  districts.  These 
candidates  together  make  up  its  State  electoral  ticket.  These  two 
steps  are  in  no  way  required  by  the  Constitution  or  laws,  but  belong 
wholly  to  the  sphere  of  party  management. 

3.  On  Tuesday  following  the  first  Monday  in  November  the  elec- 
tors are  appointed  in  all  the  States  by  a  popular  election.  This  is 
popularly  called  the  presidential  election,  and  it  is  so  in  fact,  if  not 
in  law.  This  third  step  is  taken  by  the  authority  of  State  laws.  Con- 
gress fixing  the  time.  From  this  time  on,  the  Constitution  and  laws 
take  exclusive  charge  of  the  process. 

4.  On  the  second  Monday  in  January  the  electors  meet  at  their 
respective  State  capitals,  and  vote  by  ballot,  according  to  the  consti- 
tutional provisions,  for  President  and  Vice  President.  They  make 
three  copies  each  of  the  two  lists  of  ballots,  naming  the  offices,  the 
persons,  and  the  number  of  votes,  which  they  sign,  certify,  and  seal. 


264  THE  AMERICAN  GOVERNMENT. 

.One  of  these  copies  they  send  by  mail  to  Washington,  addressed  to 
the  President  of  the  Senate;  one  they  send  to  Washington  by  a 
special  messenger,  addressed  to  the  same  person ;  and  the  third  they 
deliver  to  the  Judge  of  the  United  States  District  Court  for  the  dis- 
trict in  which  the  electors  meet  and  vote. 

5.  On  the  second  Wednesday  of  February  the  Senate  and  House 
of  Representatives  meet  in  the  Hall  of  the  House.  The  President  of 
the  Senate,  in  their  presence,  opens  the  certificates  and  hands  them 
to  the  tellers  appointed  by  the  houses,  who  read  and  count  the  votes. 
The  person  having  the  greatest  number  of  votes,  if  a  majority  of  all 
the  electors  appointed,  he  declares  President-elect;  the  person  hav- 
ing the  greatest  number  of  votes  for  Vice  President,  if  a  majority  of 
all.  Vice- President-elect. 

6.  If  no  persons  have  such  majorities,  then  the  elections  go  to  the 
House  of  Representatives  and  the  Senate  as  before  explained. 

475.  Irregularities  in  Elections. — Many  perplexing  questions 
have  arisen,  and  many  irregularities  have  occurred,  in  conducting 
presidential  elections.  The  provision  that  no  person  holding  an 
office  of  trust  or  profit  under  the  United  States  shall  be  appointed 
an  elector,  has  been  frequently  disregarded  through  inadvertence 
until  it  was  too  late  to  correct  the  error.  Sometimes  an  electoral 
college  has  failed  to  meet  and  vote  on  the  day  appointed,  as  in  Wis- 
consin, in  1856,  owing  to  a  severe  snowstorm.  These  and  other  ques- 
tions have  been  disposed  of  as  they  have  arisen,  and  have  not  gener- 
ally led  to  legislation.  In  1845,  however,  Congress  enacted  that  the 
States  should  by  law  provide  for  filling  vacancies  in  their  respective 
colleges.  In  most  cases,  if  not  all,  the  legislatures  have  conferred 
on  the  college  itself  the  power  of  filling  such  vacancies. 

Note. — The  question  is  sometimes  as^ed.  What  is  the  effect  of  the  rule 
laid  down  in  Amendment  XII.  that  electors  shall  vote  for  President  and 
Vice  President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves"?  The  rule  does  not  prohibit  the  election  of  both 
officers  from  the  same  State.  It  prohibits  the  electors  of  any  State  from  voting 
for  candidates  for  both  offices  from  their  own  State,  but  does  not  prohibit  the 
electors  of  other  States  doing  so.  Thus,  the  President  and  Vice  President 
might  both  come  from  Massachusetts  or  Virginia;  but,  in  the  one  case,  the 
Massachusetts  electors  could  not  vote  for  both  of  thenf,  or,  in  the  other  case, 
the  Virginia  electors  could  not.  The  importance  of  the  rule  appears  in  its 
effect  on  party  nominations;  no  political  party  would  nominate  two  candidates 
from  the  same  State,  at  least  any  State  that  it  had  any  hope  of  carrying, 
because  the  electors  from  that  State  would  be  unable  to  vote  for  both  of  them. 
Of  course,  there  are  other  political  reasons  why  no  party  is  likely  to  do  such 
a  thing.  The  rule  works  to  prevent  the  election  of  a  President  and  Vice 
President  from  the  same  State,  but  indirectly  so. 


CHAPTER  XXXI. 

THE  QUALIFICATIONS  AND  REMOVAL  OF  THE  PRESI- 
DENT. 

Article  II. 

Section  J,  Clause  4. —  No  person  except  a  natural-born  citizen,  or 
a  citizen  of  the  United  States  at  the  time  of  the  adoption  of  this 
Constitution,  shall  be  eligible  to  the  office  of  President ;  neither  shall 
any  person  be  eligible  to  that  office  who  shall  not  have  attained  to 
the  age  of  thirty-five  years,  and  been  fourteen  years  a  resident  within 
the  United  States. 

476.  Qualifications  of  the  President. — Arguments  are 
not  called  for  to  show  the  propriety  of  the  qualifications 
named,  save  in  one  point.  In  1787  there  were  many  distin- 
guished men  of  foreign  birth  in  the  country  who  had  ren- 
dered it  valuable  service,  and  some  of  whom,  as  Alexander 
Hamilton  and  James  Wilson,  were  members  of  the  Conven- 
tion that  framed  the  Constitution ;  and,  as  a  mark  of  respect 
to  them,  the  rule  was  so  drawn  as  to  render  such  men  eligible 
to  the  presidency.  Residence  abroad  on  official  duty,  as 
that  of  a  minister,  is  not  a  disqualification. 

Section  i,  Clause  5. —  In  case  of  the  removal  of  the  President  from 
office,  or  of  his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the  same  shall  devolve  on  the 
Vice  President ;  and  the  Congress  may  by  law  provide  for  the  case 
of  removal,  death,  resignation,  or  inability,  both  of  the  President 
and  Vice  President,  declaring  what  officer  shall  then  act  as  President, 
and  such  officer  shall  act  accordingly,  until  the  disability  be  removed 
or  a  President  shall  be  elected. 

477.  The  Vice  President. — Neither  the  Virginia  plan  nor  the 
Jersey  plan  said  anything  about  the  officers  of  the  houses  of  Con- 
gress, or  the  succession  to  the  presidency  in  case  of  the  President's 
death,  removal,  etc.  The  draft  submitted  by  Mr.  Pinckney  pro- 
vided that  the  houses  should  elect  their  own  officers,  and  that  the 
President  of  the   Senate   should   become    President   of  the   United 

(265) 


266  THE  AMERICAN  GOVERNMENT. 

States  in  case  of  a  vacancy.  Hamilton's  plan  agreed  with  Pinck- 
ney's,  only  he  styled  the  President  of  the  Senate  Vice  President. 
The  first  proposition  to  have  a  Vice  President  proper  was  made 
when  the  electoral-college  plan  of  electing  the  President  was  under 
consideration,  near  the  end  of  the  Convention.  It  was  then  pro- 
vided that  every  elector  should  vote  for  two  candidates  for  President, 
the  candidate  having  the  largest  number  of  votes  to  be  President, 
if  a  majority  of  all,  the  one  having  the  next  largest  to  be  Vice  Presi- 
dent; and  then,  to  give  the  office  dignity,  the  Vice  President  was 
made  President  of  the  Senate.  This  was  a  complete  reversal  of 
Pinckney's  and  Hamilton's  ideas.  The  office  was  opposed  as  unnec- 
essary, as  an  encroachment  on  the  right  of  the  Senate  to  choose  its 
own  officers,  and  as  mingling  the  legislative  and  executive  depart- 
ments. 

No  other  parts  of  the  Constitution  that  have  been  followed  by 
equally  important  results,  were  so  hastily  considered  by  the  Fed- 
eral Convention  as  those  relating  to  the  Vice  Presidency.  Ap- 
parently, the  framers  did  not  foresee  the  consequences  that  have 
followed  the  creation  of  the  office.  The  executive  chair  has  been 
filled  by  five  Vice  Presidents.*  Moreover,  it  was  the  vice  presidency 
that  compelled  the  adoption  of  Amendment  XII. 

478.  Removal  of  the  President,  etc. — Only  conviction 
on  impeachment  can  effect  a  removal  of  the  President,  in 
the  sense  of  the  Constitution.  A  resignation  must  be  made 
in  writing,  and  be  filed  in  the  office  of  the  Secretary  of  State. 
What  constitutes  "  inability  to  discharge  the  powers  and 
duties  of  the  office  "  of  President,  has  never  been  settled. 
The  only  executive  act  performed  by  President  Garfield  from 
July  2  to  September  19,  1881,  was  signing  his  name  to  an 
extradition  paper.  The  question  whether  a  case  of  inability 
had  arisen,  was  much  discussed  at  the  time,  but  with  no 
practical  result. 


*  President  W.  H.  Harrison,  inaugurated  March  4,  1841,  died  April  4, 
and  was  succeeded  by  Vice-President  Tyler.  President  Taylor,  inaugurated 
March  4,  1849,  died  July  9,  1850,  and  was  succeeded  by  Vice-President 
Fillmore.  President  Lincoln,  inaugurated  for  a  second  term  March  4,  1865, 
died  April  14,  and  was  succeeded  by  Vice-President  Johnson.  President 
Garfield,  inaugurated  March  4,  1881,  died  September  19,  and  was  succeeded 
by  Vice-I*resident  Arthur.  President  McKinley,.  inaugurated  for  a  second 
term  March  4,  1901,  died  September  14,  and  was  succeeded  by  Vice-President 
Roosevelt.  President  Harrison's  Cabinet  proposed  that  Mr.  Tyler  should  be 
styled  feting  President,  but  he  declined  the  proposition  and  assumed  the  full 
title.     This   precedent  has  since  been   followed. 


REMOVAL  OF  THE  PRESIDENT.  267 

479.  The  Presidential  Succession. — The  clause  devolves 
upon  Congress  the  duty  of  providing  by  law  for  the  case  of 
the  removal,  death,  etc.,  of  both  the  President  and  the  Vice 
President.  Congress  provided  in  1792  that  the  President 
pro  tempore  of  the  Senate,  or  in  case  there  were  no  President 
pro  tempore,  the  Speaker  of  the  House  of  Representatives, 
should  act  as  President  until  the  disability  were  remc^ved  or 
a  President  elected.  This  law  also  provided  for  a  special 
election  to  fill  out  the  term  when  the  President  pro  tempore 
or  the  Speaker  had  succeeded  to  the  office. 

This  act  continued  in  force  until  1886,  when  Congress 
passed  an  act  regulating  the  presidential  succession.  This 
act  substitutes  the  Secretary  of  State,  the  Secretary  of  the 
Treasury,  the  Secretary  of  War,  the  Attorney-General,  the 
Postmaster-General,  the  Secretary  of  the  Navy,  and  the  Sec- 
retary of  the  Interior,  in  this  order,  for  the  President  pro 
tempore  and  the  Speaker.  It  also  repeals  the  provision  of 
1792  in  regard  to  a  new  election,  so  that,  as  the  law  now 
stands,  any  Cabinet  officer  succeeding  would  fill  out  the  term 
the  same  as  the  Vice  President  does.  It  also  provides  for 
calling  a  special  session  of  Congress  within  twenty  days  of 
the  time  when  any  member  of  the  Cabinet  becomes  Presi- 
dent, unless  Congress  be  in  session  at  the  time  or  is  to  meet 
within  twenty  days.  It  provides  further  that  no  Cabinet 
officer  can  succeed  unless  he  has  been  confirmed  by  the  Sen- 
ate, and  also  has  the  qualifications  for  the  presidency  named 
in  clause  5  of  this  section  of  the  Constitution. 

480.  Objections  to  the  Old  Rule. — The  objections  to  the  rule  of 
1792,  and  the  arguments  in  favor  of  the  new  rule,  as  stated  in  1886, 
are  various.  One  point  is  that  the  new  plan  will  be  more  likely  than 
the  old  one  to  lead  to  continuity  of  executive  policy;  another  is  that 
the  Senate  is  not  certain  to  have  a  President  pro  tempore,  or  the 
House  a  Speaker,  when  he  is  wanted.  For  example,  the  Senate  had 
no  such  President  from  March  4  to  October  10,  1881,  while  the 
House  had  no  Speaker  from  March  4  to  December  5,  of  the  same 
year.  Had  Vice-President  Arthur  died,  the  nation  would  have  been 
without  a  chief  magistrate  after  September  19,  unless  special  action 
had  been  taken.     It  was  also  urged  that  the  new  rule  of  succession 


268  THE  AMERICAN  GOVERNMENT. 

puts  more  lives  between  the  executive  office  and  anarchy,  and  throws 
new  safeguards  around  the  President's  life. 

Section  i,  Clause  6. —  The  President  shall,  at  stated  times,  re- 
ceive for  his  services  a  compensation  which  shall  neither  be  in- 
creased nor  diminished  during  the  period  for  which  he  shall  have 
been  elected,  and  he  shall  not  receive  within  that  period  any  other 
emolument  from  the  United  States,  or  any  of  them. 

481;  Salaries. — If  the  President's  compensation  could  be 
increased  during  the  term  that  he  is  serving,  he  might  enter 
into-  collusion  with  members  of  Congress  to  effect  that  ob- 
ject; if  it  could  be  diminished,  Congress  might  reduce  it  and 
so  make  the  President  its  creature.  All  changes  therefore 
must  be  prospective.  In  1789  the  President's  salary  was 
fixed  at  $25,000,  and  such  it  remained  until  1873,  when  it 
was  raised  to  $50,000.  He  is  also  provided  with  a  furnished 
hoiise.  In  1789  the  salary  of  the  Vice  President  was  made 
$5,000;  in  1853  it  was  raised  to  $8,000,  and  in  1873  to 
$10,000,  but  was  reduced  to  $8,000  the  next  year. 

Section  i,  Clause  7. —  Before  he  enter  on  the  execution  of  his 
office,  he  shall  take  the  following  oath  or  affirmation : — 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  office  of  President  of  the  United  States,  and  will,  to  the  best  of 
my  ability,  preserve,  protect,  and  defend  the  Constitution  of  the 
United  States." 

482.  President's  Inauguration. — Beyond  requiring  him 
to  take  this  oath,  and  fixing  the  day  that  he  shall  enter  on 
the  duties  of  his  office,  neither  the  Constitution  nor  the  laws 
make  any  provision  for  the  inauguration  of  the  President. 
All  the  rest  is  custom.  Before  taking  the  oath,  the  Presi- 
dent delivers  an  inaugural  address,  but  this  is  not  an  official 
paper  and  is  not  required  by  law.  The  Chief  Justice 
usually  administers  the  oath,  but  any  magistrate  empowered 
to  administer  oaths  would  answer  the  purpose.  According 
to  custom  also,  the  Vice  President  delivers  an  address  on 
taking  the  oath  of  office.  Vice-President  Tyler  did  not  think 
it  necessary  to  take  the  President's  oath,  as  he  had  already 
taken  the  oath  prescribed  by  law  for  the  Vice  President,  but 
he  finally  consented  to  take  it. 


CHAPTER  XXXII. 

POWERS  AND  DUTIES  OF  THE  PRESIDENT. 

Articu:  II. 

Section  2,  Clause  i. — The  President  shall  be  commander  in  chief 
of  the  army  and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  States  when  called  into  the  actual  service  of  the  United 
States ;  he  may  require  the  opinion,  in  writing,  of  the  principal  offi- 
cer in  each  of  the  executive  departments,  upon  any  subject  relating 
to  the  duties  of  their  respective  offices,  and  he  shall  have  power  to 
grant  reprieves  and  pardons  for  offenses  against  the  United  States, 
except  in  cases  of  impeachment. 

I.    The  Army  and  the  Navy. 

483.  The  President  Commander  in  Chief. — ^The  effec- 
tive exercise  of  military  power  demands  unity  of  judgment 
and  promptness  of  decision ;  while  Congress,  being  a  body 
that  consists  of  two  houses  which  debate  and  settle  ques- 
tions by  voting,  lacks  those  essential  qualities.  Still,  there 
was  some  hesitation  in  the  Convention  in  making  the  Presi- 
dent commander  in  chief,  lest  he  use  his  power  against  the 
liberties  of  the  country.  Such  a  contingency  is,  however, 
sufficiently  guarded  against  by  giving  Congress  the  power 
to  declare  war,  to  raise  and  support  the  army,  to  provide  and 
maintain  the  navy,  to  make  all  rules  for  the  government  of 
the  military  and  naval  forces,  and  to  provide  for  calling  out 
the  militia.  The  President  delegates  his  authority  to  com- 
mand the  army  and  navy,  in  actual  service,  to  officers  whom 
he  selects  for  that  purpose. 

II.    The  Pardoning  Power. 

484.  Reprieves  and  Pardons. — A  reprieve  is  a  tempo- 
rary suspension  of  a  sentence  already  pronounced  by  some 

(269) 


270  THE  AMERICAN  GOVERNMENT. 

court  or  tribunal ;  a  pardon  is  a  full  release  from  punishment 
for  an  offense,  and  may  be  given  as  well  before  or  during 
trial  as  after  it.  All  civilized  countries  give  their  executives 
power  to  grant  reprieves  and  pardons.  However,  for  rea- 
sons stated  in  another  place,  the  President  has  no  such  power 
in  impeachment  cases,  and  the  judgment  entered  in  such  a 
case  cannot  be  changed  or  set  aside. 

III.    Treaties. 

Section  2,  Clause  2. — He  shall  have  power,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  make  treaties,  provided  two  thirds  of 
the  Senators  present  concur.    ... 

485.  The  Treaty-Making  Power. — A  treaty  is  a 
solemn  compact  or  agreement  between  two  or  more  sover- 
eign states.  In  monarchies  the  power  to  make  a  treaty,  like 
the  power  to  declare  war,  is  lodged  in  the  crown ;  the  legisla- 
ture controls  either  act  only  through  its  power  over  the 
supplies.  The  great  objection  to  intrusting  this  power  to 
the  legislature  is  that  the  requisite  secrecy  and  decision  can- 
not, as  a  rule,  be  thus  secured.  Still,  in  a  republic  it  would 
be  as  dangerous  to  give  it  absolutely  to  the  executive  as  to 
give  the  war  power  to  him.  Hence  the  provision  that  the 
Senate  must  advise  and  consent  to  a  treaty  by  a  two-thirds 
vote  of  the  Senators  present  when  the  vote  is  taken. 

486.  Steps  in  Making  a  Treaty. — First,  the  treaty  is 
negotiated.  In  this  stage  the  government  is  lepresented  by 
the  Secretary  of  State,  by  a  minister  residing  at  a  foreign 
capital,  or  by  a  minister  or  one  or  more  commissioners  ap- 
pointed for  the  purpose.  But  the  President,  acting  through 
the  Department  of  State,  directs  the  general  course  of  the 
negotiation.  If  the  President  positively  disapproves  of  a 
treaty  when  negotiated,  he  commonly  goes  no  farther ;  if  he 
approves  it,  or  is  in  doubt  whether  to  approve  it  or  not,  he 
lays  it  before  the  Senate.  The  Senate  may  approve  or  dis- 
approve a  treaty  as  framed ;  it  may  propose  amendments,  or 
it  may  postpone  action  until  the  time  for  the  treaty  to  go 
into  effect  has  passed.     If  the  Senate  approves,  the  Presi- 


POWERS  AND  DUTIES  OF  THE  PRESIDENT.      271 

dent  usually  ratifies  the  treaty  at  once ;  but  he  may  postpone 
action,  or  even  reject  the  treaty.  If  the  Senate  votes  to 
amend,  the  treaty  is  practically  a  new  document,  and  the 
foreign  power,  as  well  as  the  President,  must  assent  to  it  in 
its  new  form.  Next  comes  the  exchange  of  ratifications,  a 
formal  act  by  which  the  signatory  powers  declare  that  all  the 
steps  necessary  to  make  the  treaty  binding  have  been  taken. 
The  time  within  which  this  may  be  done  is  commonly  stip- 
ulated in  the  treaty  itself.  Finally,  the  President  publishes 
the  treaty,  with  a  proclamation  declaring  it  a  part  of  the  law 
of  the  land. 

The  Senate  considers  treaties  in  executive  session.  One  of  the 
rules  governing  such  sessions  is  that  all  confidential  communica- 
tions made  by  the  President  to  the  Senate,  including  treaties,  and 
all  remarks,  votes,  and  proceedings  thereon,  shall  be  kept  secret 
until  the  Senate  shall  by  resolution  remove  the  injunction  of  secrecy. 
Commonly  the  advice  and  consent  of  the  Senate  is  consent  merely. 
Sometimes,  however,  the  President  sends  to  the  Senate  the  nomina- 
tion of  a  special  minister  or  commissioner  to  conduct  a  negotiation. 

487.  Congress  and  the  Treaty  Power. — Although  the 
Constitution  vests  the  treaty  power  in  the  President  and  Sen- 
ate alone.  Congress  has  sometimes  played  an  important  part 
in  making  treaties.  In  1803  it  authorized  the  purchase  of 
the  island  of  New  Orleans,  which  was  one  of  the  steps  lead- 
ing to  the  Louisiana  annexation.  It  also  authorized  the 
Florida  and  Mexican  annexations  of  1819  and  1848.  In 
1845  Congress,  by  joint  resolution,  declared  that  the  repub- 
lic of  Texas  might  enter  the  Union,  either  by  a  treaty  or  by 
accepting  certain  terms  laid  down  in  the  resolution  itself. 
The  second  was  the  course  followed.  It  has  been  held  that 
Congress  should  always  be  consulted  in  advance  when  an 
annexation  of  territory  is  contemplated,  but  this  was  not 
done  in  the  case  of  Alaska.  Again,  the  Constitution  pro- 
vides that  "  No  money  shall  be  drawn  from  the  treasury 
but  in  consequence  of  appropriations  made  by  law."  Hence 
arises  the  question,  What  shall  be  done  when  a  treaty  calls 
for  an  expenditure  of  money  ?  Does  this  action  of  the  Pres- 
ident and  the  Senate  bind  Congress,  or  may  it  refuse  to  vote 


272  THE  AMERICAN  GOVERNMENT. 

the  appropriation?  Chancellor  Kent  says  a  treaty  is  as 
much  obligatory  upon  Congress  as  upon  any  branch  of  the 
government,  or  upon  the  people  at  large;  while  Judge 
Cooley  affirms  that  "  it  becomes  the  duty  of  Congress  to 
make  the  necessary  appropriations,  but  in  the  nature  of 
things  this  is  a  duty  the  performance  of  which  cannot  be 
coerced." 

488.  Jay's  Treaty. — The  relations  of  the  United  States  and 
England  had  become  so  much  strained  in  1794  that  war  between 
them  seemed  highly  probable.  So  President  Washington,  with  the 
advice  and  consent  of  the  Senate,  sent  John  Jay,  the  Chief  Justice,  to 
London,  to  negotiate,  if  possible,  a  treaty  that  should  settle  the  ques- 
tions in  dispute.  Washington  was  far  from  being  satisfied  with  the 
treaty  negotiated,  but,  thinking  it  the  best  one  attainable  at  the  time, 
and  preferable  to  longer  contention,  gave  it  his  approval.  The  Sen- 
ate had  ratified  it  by  20  to  10  votes,  June  24,  1795.  The  publication 
of  the  treaty  caused  an  extraordinary  excitement  throughout  the 
country,  which  finally  culminated  in  a  prolonged  and  bitter  struggle 
in  the  House  of  Representatives.  The  House  adopted  a  resolution 
by  a  vote  of  fifty-seven  to  thirty-five  disclaiming  all  claim  of  power 
in  making  treaties,  but  asserting  that  Congress  had  the  right  to  de- 
liberate upon  treaties  containing  regulations  on  subjects  placed  by 
the  Constitution  in  its  control.  It  then  adopted  by  fifty-one  votes 
to  forty-eight  a  resolution  that  the  treaty  ought  to  be  carried  into 
effect,  and  this  ended  the  strife.  The  controversy  in  the  House 
hinged  on  an  appropriation  of  $90,000  that  the  treaty  called  for.  The 
House  of  Representatives  has  never  failed  to  vote  money  needed  to 
give  effect  to  treaties,  but  it  has  always  insisted  that  it  did  so  on 
grounds  of  expediency  and  not  of  obligation.  Should  it  ever  refuse, 
the  result  would  be  a  dead  lock  that  might  prove  serious. 

489.  Scope  of  the  Treaty-Making  Power. — ^The  question  of  1796 
is  a  part  of  a  larger  one,  viz.,  the  character  and  scope  of  the  treaty- 
making  power.  This  is  not  defined,  and  could  not  well  be  defined, 
in  the  Constitution,  and  we  must  go  to  the  law  of  nations  for  such  a 
definition.  Three  or  four  facts  will  show  that  the  power  is  very  far- 
reaching. 

Mr.  Jefferson  held  the  opinion  that  the  Constitution  does  not 
warrant  the  annexation  of  foreign  territory,  and  he  advised  in  1803 
that  Louisiana  be  bought,  and  that  then  the  Constitution  be  amended 
to  sanction  the  purchase.  The  chiefs  of  the  Democratic-Republican 
party  took  the  position,  in  which  he  finally  acquiesced,  that  the 
treaty  power  covers   such  a   case.    This   view   has   been   generally 


POWERS  AND  DUTIES  OF  THE  PRESIDENT.      273 

accepted.  "  The  Constitution  confers  absolutely  on  the  government 
of  the  Union  the  powers  of  making  war  and  making  treaties,"  says 
Chief-Justice  Marshall ;  "  consequently  that  government  possesses  the 
power  of  acquiring  territory,  either  by  conquest  or  by  treaty." 
Again,  the  President  and  Senate  have,  by  treaty,  often  regulated 
commercial  affairs  with  other  nations :  customs,  tonnage  duties,  and 
the  like,  and  foreigners  have  been  naturalized  by  treaty  en  masse  on 
the  annexation  of  territory,  although  the  Constitution  expressly  con- 
fers all  these  powers  upon  Congress. 

490.  The  Relation  of  a  Treaty  to  the  Constitution  and 
Laws.  — The  Constitution,  the  laws  made  in  pursuance 
thereof,  and  treaties  entered  into,  are  the  supreme  law  of  the 
land  (Article  VI.,  clause  2).  Hence  State  constitutions  and 
laws  in  conflict  with  a  treaty  are,  to  this  extent,  null  and 
void.^  In  the  Cherokee  Tobacco  Case,-  the  Supreme  Court 
held  that  a  treaty  cannot  change  the  national  Constitution, 
or  be  held  valid  if  it  is  in  violation  of  that  instrument ;  also 
that  a  treaty  may  supersede  a  prior  act  of  Congress,  and  an 
act  of  Congress  a  prior  treaty.  In  the  Chinese  Exclusion 
Case,^  the  court  held  that  the  act  of  Congress  excluding 
Chinese  laborers  from  the  country  is  constitutional,  although 
contrary  to  a  treaty  previously  entered  into  with  China.  In 
1798  Congress  declared  the  United  States  freed  and  exoner- 
ated from  the  stipulations  of  all  existing  treaties  and  conven- 
tions with  France, 

IV.    The  Civil  Service. 

Section  2,  Clause  2. —  .  .  .  He  shall  nominate,  and,  by  and  with 
the  advice  and  consent  of  the  Senate,  shall  appoint  ambassadors, 
other  public  ministers  and  consuls,  judges  of  the  Supreme  Court, 
and  all  other  officers  of  the  United  States  whose  appointments  are 
not  herein  otherwise  provided  for,  and  which  .shall  be  established  by 
law ;  but  the  Congress  may  by  law  vest  the  appointment  of  such  in- 
ferior officers  as  they  think  proper,  in  the  President  alone,  in  the 
courts  of  law,  or  in  the  heads  of  departments. 

Section  2,  Clause  3. — The  President  shall  have  power  to  fill  up  all 
vacancies   that   may   happen    during  the   recess   of   the   Senate,   by 


*  Hauenstein  v.  Lynham,   100  U.  S.  483. 
'  n   Wallace  6i6. 
»  130  U.   S.   581. 

AM.  OOV. — 18 


274  THE  AMERICAN  GOVERNMENT. 

granting  commissions  which  shall  expire  at  the  end  of  their  next 
session. 

491.  Officers  of  the  United  States. — The  Constitution 
creates  Senators  and  Representatives,  and  directs  how  they 
shall  be  elected.  It  creates  presidential  electors,  and  com- 
mits the  mode  of  their  appointment  to  the  State  legislatures. 
It  creates  the  President  and  the  Vice  President,  and  pro- 
vides for  their  election.  It  provides  also  for  a  Chief  Jus- 
tice. Furthermore,  the  Constitution  assumes  that  Congress 
will,  by  law,  provide  for  public  ministers  of  various  grades, 
consuls,  judges  of  the  Supreme  Court  and  the  inferior 
courts,  heads  of  departments,  and  inferior  officers,  and  so  in- 
directly gives  it  power  to  provide  for  them.  For  the  most 
part,  however,  the  Constitution  commits  the  creation  of 
offices  to  the  law-making  power.  The  rule  is  that  the  Presi- 
dent cannot  create  offices,  or  appoint  men  to  offices  that  have 
not  been  created. 

492.  Classes  of  Officers. — As  respects  their  appoint- 
ment, officers  are  divisible  into  three  groups. 

1.  The  President  nominates,  and  by  and  with  the  advice 
and  consent  of  the  Senate  appoints,  ambassadors,  other  pub- 
lic ministers  and  consuls,  and  judges  of  the  Supreme  Court. 

2.  Congress  vests  the  appointment  of  many  inferior 
officers  in  the  President  alone,  in  the  courts  of  law,  or  in 
the  heads  of  departments. 

3.  The  President  nominates,  and  by  and  with  the  advice 
and  consent  of  the  Senate,  appoints  all  officers  established  by 
law  who  do  not  fall  into  either  one  of  the  preceding  classes. 
The  heads  of  departments,  for  example,  fall  into  this  third 
class,  which  is  a  very  large  one. 

493.  Employees  of  the  Government. — Only  a  minority  of  the 
persons  engaged  in  the  civil  service  are  called  officers.  There  are  at 
all  times  thousands  of  persons  in  that  service  who  are  employed,  not 
appointed,  and  are  discharged,  not  removed.  In  this  class  are  found 
not  only  the  laborers  in  the  navy  yards,  arsenals,  and  elsewhere,  but 
also  many  persons  in  continuous  service  at  customhouses  and  other 
offices,  as  well  as  clerks  of  committees,  commissions,  etc. 

494.    Vesting  the  Appointing  Power. — The  President 


POWERS  AND  DUTIES  OF  THE  PRESIDENT.      275 

appoints  his  private  secretary  and  the  clerks  of  his  office. 
The  Judges  appoint  the  officers  of  their  own  courts,  except 
that  the  marshals  are  appointed  by  the  President  and  Senate. 
The  heads  of  departments  appoint  their  own  subordinates, 
save  the  principal  ones,  which  fall  into  the  third  class.  For 
example,  the  Postmaster-General  appoints  all  postmasters 
whose  salaries  are  less  than  $1,000. 

495.  Nomination  and  Confirmation. — The  advice  and 
consent  of  the  Senate  in  making  appointments,  like  its  ad- 
vice and  consent  in  making  treaties,  is  practically  consent 
only.  The  President  sends  a  nomination  to  the  Senate  in 
writing;  the  Senate  commonly  refers  the  nomination  to  the 
committee  on  the  particular  branch  of  the  public  business 
with  which  the  officer  will  deal,  as  the  Committee  on  Com- 
merce, or  the  Judiciary ;  and  then,  on  its  report,  the  Senate 
confirms  or  rejects  the  nomination.  If  the  Senate  refuses 
to  confirm,  the  President  makes  another  nomination,  and 
so  on  until  the  office  is  filled.  Sometimes,  but  rarely,  the 
President  has  nominated  the  same  man  the  second  time. 
The  Senate  acts  on  nominations  in  executive  session.  De- 
fending this  mode  of  appointment,  Alexander  Hamilton 
said :  "  The  blame  of  a  bad  nomination  falls  upon  the  Pres- 
ident simply  and  absolutely;  the  crime  of  rejecting  a  good 
one  lies  entirely  at  the  door  of  the  Senate;  while  if  a  bad 
appointment  is  made,  the  two  participate  in  the  opprobrium 
and  disgrace."  ^ 

496.  Courtesy  of  the  Senate. — The  theory  of  the  Constitution  is 
that  the  Senate,  in  advising  and  consenting  to  appointments,  attends 
only  to  the  merits  of  the  persons  nominated.  The  practice  is  widely 
different.  In  his  first  administration,  Washington  nominated  a 
naval  officer  for  the  port  of  Savannah,  whom  the  Senate  refused  to 
confirm,  because  the  nominee  was  personally  obnoxious  to  the  Sen- 
ators from  Georgia.  This  was  the  beginning  of  the  so-called  "  cour- 
tesy of  the  Senate,"  according  to  which  the  Senate,  as  a  rule,  does 
not  confirm  a  nominee  unless  he  is  acceptable  to  one  or  both  of  the 
Senators  from  the  State  in  which  the  office  exists,  provided  they,  or 
one  of  them,  belongs  to  the  political  party  that  for  the  time  has  a 

*  The  Federalist,  No.  77. 


276  THE  AMERICAN  GOVERNMENT. 

majority  in  the  body.  This  custom  practically  puts  the  Senators,  or 
a  Senator,  from  a  State  in  the  room  of  the  Senate  as  an  advising 
body. 

497.  Power  of  Removal. — Save  officers  convicted  on 
impeachment,  the  Constitution  says  nothing  about  removals 
from  office.  At  the  same  time,  it  is  clear  that  removals  are 
sometimes  necessary  for  causes  that  would  not  justify  im- 
peachment. Who  shall  make  these  removals?  Hamilton 
said  in  The  Federalist  that  the  consent  of  the  Senate  would 
be  as  necessary  to  displace  an  officer  as  to  appoint  him  in 
the  first  place ;  and  no  other  view  appears  to  have  been  en- 
tertained before  the  Constitution  went  into  operation.  But 
this  did  not  become  the  practice. 

While  considering,  in  1789,  the  organization  of  the  De- 
partment of  State,  the  House  of  Representatives  discussed 
the  subject  of  removals  thoroughly.  Some  members  advo- 
cated the  view  asserted  by  Hamilton  the  year  before ;  others, 
as  Mr.  Madison,  contended  that  the  power  of  removal  be- 
longed to  the  President  alone;  Mr.  Benson,  of  New  York, 
advocated  the  theory  that  the  President  could  remove  at  his 
own  pleasure;  while  still  others  held  that  an  officer  could 
not  be  removed  unless  actually  impeached.  The  House, 
by  a  vote  of  34  to  20,  and  the  Senate,  by  the  casting  vote  of 
the  Vice  President,  declared  in  favor  of  the  second  theory. 
Congress  accordingly  made  the  heads  of  the  State,  Treas- 
ury, and  War  Departments  removable  by  the  President  alone, 
and  this  has  been  the  rule  nearly  ever  since.  The  decision 
of  1789  was  greatly  influenced  by  the  confidence  reposed  in 
Washington. 

498.  Removals  from  Office. — Although  Congress  left  the 
causes  for  which  removals  might  be  made  wholly  to  the  discretion 
of  the  President,  there  were  only  73  removals  in  10  administrations. 
Washington  made  9,  John  Adams  9,  Jefferson  39,  Madison  5,  John 
Quincy  Adams  2,  Monroe  9.  In  this  period  the  rule  was  that  the 
President  made  removals  for  legal  and  moral  reasons  only.  Presi- 
dent Jackson,  in  1829,  introduced  a  new  order  of  things.  In  one  year 
he  made  734  removals ;  some  of  them  to  punish  his  political  enemies, 
some  to  reward  his  political   friends,  and  some  to  strengthen  his 


POWERS  AND  DUTIES  OF  THE  PRESIDENT.      277 

party.  This  was  adopting  in  its  widest  latitude  the  theory  that  the 
President  could  remove  at  his  pleasure.  The  new  method  was  bor- 
rowed from  the  politicians  of  New  York,  and  Mr.  Marcy,  of  that 
State,  defending  it  in  the  Senate,  said :  "  When  they  are  contending 
for  victory,  they  avow  the  intention  of  enjoying  the  fruits  of  it.  If 
they  are  defeated,  they  expect  to  retire  from  office.  If  they  are  suc- 
cessful, they  claim  as  matter  of  right  the  advantages  of  success. 
They  see  nothing  wrong  in  the  rule  that  to  the  victors  belong  the 
spoils  of  the  enemy." 

499.  The  Spoils  System. — President  Jackson's  course  produced 
great  dissatisfaction.  In  1835  a  committee  of  the  Senate,  Mr.  Cal- 
houn chairman,  said  the  spoils  system  was  as  perfect  a  scheme  as' 
could  be  devised  for  enlarging  the  power  of  patronage,  destroying 
love  of  country,  and  substituting  a  spirit  of  subserviency  and  man- 
worship,  encouraging  vice  and  discouraging  virtue,  preparing  for  the 
subversion  of  liberty  and  the  establishment  of  despotism.  An  at- 
tempt was  made  to  enact  a  lew  requiring  the  President,  when  mak- 
ing nominations  that  would  work  removals,  to  state  the  fact  in  his 
message  and  to  give  the  reason  for  which  the  removals  were  made. 
This  attempt  failed,  and  President  Jackson  went  on  as  before.  Presi- 
dent Van  Buren  followed  in  the  footsteps  of  his  predecessor.  When 
the  Whigs  came  into  power  in  1841,  although  they  had  vehemently 
denounced  the  preceding  administration  for  introducing  the  spoils 
system,  they  adopted  it ;  and  from  that  day  to  this,  when  a  change 
of  administration  has  occurred,  and  especially  when  it  has  involved 
a  change  of  political  party,  there  have  been  numerous  removals  for 
personal,  factional,  or  political  reasons. 

500.  Civil  Service  Reform. — Soon  after  the  Civil  War  public 
attention  was  drawn  to  the  state  of  the  civil  service.  The  Civil  Serv- 
ice Reformers,  who  appeared  at  that  time,  hold  that  the  President 
should  be  free  to  chose  those  officers  that  have  to  do  with  matters 
of  public  policy,  such  as  the  heads  of  departments  and  their 
principal  subordinates,  from  the  party  that  has  elected  him ;  also 
that  these  officers  should  be  personally  acceptable  to  him ;  but  they 
contend  that  inferior  officers  and  employees,  who  perform  routine 
duties,  should  be  appointed  with  sole  reference  to  fitness  and  during 
good  behavior.  They  also  condemn  assessments  of  money  upon 
office-holders  for  party  purposes.  Since  i86g  some  practical  reforms 
have  been  made  in  the  civil  service. 

In  1883  the  Pendleton  Act  was  passed,  of  which  these  are  the 
principal  features :  there  shall  be  competitive  examinations  of  can- 
didates in  the  departments  at  Washington,  and  in  customhouses 
and  postoffices  having  50  clerks ;  when  a  vacancy  in  such  a  depart- 
ment or  office  arises,  it  shall  be  filled  from  the  four  highest  on  tlie 


278  THE  AMERICAN  GOVERNMENT. 

list  of  those  who  have  passed  such  examinations;  each  State  and 
Territory  shall  be  entitled  to  a  fair  proportion  of  the  appointments, 
and  no  appointee  shall  be  absolutely  appointed  until  he  has  served  a 
probation  of  six  months.  This  act  does  not  include  any  appoint- 
ment that  requires  the  confirmation  of  the  Senate,  or  many  others 
that  do  not  require  it.  Following  the  act  of  1883,  several  Presidents, 
by  executive  order,  have  extended  the  merit  system,  as  it  is  called, 
to  many  classes  of  officers  and  employees  that  the  law  did  not  espe- 
cially embrace.  President  McKinley,  however,  by  an  order  issued  in 
May,  1899,  removed  a  large  number  of  appointees  from  the  classified 
service.  The  civil  service  consists  of  more  than  200,000  persons,  of 
whom  a  majority  are  in  the  classified  service. 

501.  Tenure  of  Office  Act  of  1867. — President  Johnson  became 
involved  in  a  bitter  controversy  with  the  Republican  party,  which 
had  elected  him  to  power  and  which  controlled  both  houses  of  Con- 
gress. He  removed  many  officers  that  were  obnoxious  to  him.  The 
Senate  while  in  session  could  partially  prevent  such  removals  by  re- 
fusing to  confirm  his  nominees,  but  it  had  no  check  on  removals 
made  in  the  recess.  So  Congress  passed,  over  the  veto,_  the  Tenure 
of  Office  Act,  containing  these  provisions :  That  the  President  might 
suspend  an  officer  in  "the  recess  of  Congress;  that  he  should  report 
each  suspension  to  the  Senate,  together  with  his  reasons  for  making 
it,  within  twenty  days  after  the  subsequent  assembling  of  the  Senate; 
that  if  the  Senate  should  concur  with  the  President,  the  President 
might  then  remove  the  officer  and  appoint  another  one  in  the  usual 
way;  that  if  the  Senate  did  not  concur,  the  suspended  officer  should 
resume  his  duties.  The  President's  disregard  of  this  law  in  removing 
Secretary  Stanton  was  the  main  cause  of  his  impeachment  by  the 
House  of  Representatives.  Soon  after  the  inauguration  of  President 
Grant,  in  1869,  the  principal  features  of  this  law  were  repealed,  and, 
in  1887,  the  remaining  ones  also. 

502.  Present  Rule  of  Removals. — In  the  session  of  the 
Senate,  the  President  can  remove  an  officer  by  nominating, 
and  by  and  with  the  advice  and  consent  of  the  Senate,  ap- 
pointing his  successor.  The  appointee  does  not  receive  his 
commission,  or  the  incumbent  vacate  his  office,  until  the 
nomination  has  been  confirmed.  In  the  recess,  the  Presi- 
dent can  remove  an  officer  by  appointing  a  successor,  who 
at  once  receives  his  commission  and  enters  upon  the  duties 
of  the  office.  If  the  Senate  refuses  at  its  next  session  to 
confirm  the  nomination,  the  President  makes  a  second  one; 
but  in  either  event  the  removal  is  final  and  absolute.     In  the 


POWERS  AND  DUTIES  OF  THE  PRESIDENT.      279 

case  of  vacancies  that  occur  in  the  recess  of  Congress,  the 
procedure  is  the  same  as  in  the  case  of  removals  made  in 
the  recess.  If  the  Senate  fails  to  act  upon  a  nomination 
before  its  final  adjournment,  the  commission  expires,  and 
the  President  must  reappoint  the  incumbent  or  appoint  some 
other  person.  All  such  offices  are  vacancies  in  the  sense  of 
the  Constitution.  The  power  of  the  President  over  the  civil 
service  is  therefore  greater  in  the  recess  than  in  the  session 
of  the  Senate. 

503.  Public  Ministers. — The  term  ministers  includes 
ambassadors,  envoys  extraordinary  and  ministers  plenipo- 
tentiary, ministers-resident,  commissioners  and  charge 
d'  affaires.  The  rank  of  a  minister  is  determined  by  various 
considerations,  as  the  rank  of  the  power  to  which  he  is  sent. 
The  United  States  first  appointed  and  received  ministers  of 
the  rank  of  ambassador  in  President  Cleveland's  second  ad- 
ministration. Ambassadors  are  now  sent  to  and  received 
from  the  following  countries :  Great  Britain,  France,  Ger- 
many, Russia,  Italy,  Austria-Hungary,  and  Mexico.  En- 
voys extraordinary  and  ministers  plenipotentiary  are  sent  to 
most  of  the  other  powers.  Ministers-resident  are  not  now 
often  appointed,  nor  commissioners,  unless  to  negotiate  spe- 
cial treaties.  The  salaries  of  ministers  range  from  $6,500 
to  $17,500,  the  latter  being  paid  to  those  at  London,  Paris, 
Berlin,  St.  Petersburg,  and  Mexico.  Several  of  the  minis- 
ters are  furnished  with  secretaries  called  secretaries  of  lega- 
tion. 

504.  The  Army  and  the  Navy. — The  army  and  the  navy 
also  fall  within  the  scope  of  the  appointing  power.  Unless 
otherwise  ordered  by  law,  all  military  and  naval  officers  are 
nominated  by  the  President,  and  appointed  by  him  by  and 
with  the  advice  and  consent  of  the  Senate.  Here  abuses  of 
the  appointing  power  have  been  comparatively  infrequent. 
Congress  enacted  in  1866:  "No  officer  in  the  military  or 
naval  service  shall,  in  time  of  peace,  be  dismissed  from  ser- 
vice except  upon,  and  in  pursuance  of,  the  sentence  of  a 
court-martial  to  that  effect,  or  in  commutation  thereof." 


28o  THE  AMERICAN  GOVERNMENT. 

505.  Consuls. — The  functions  of  consuls  are  determined 
by  treaties  and  by  the  laws  of  the  land  appointing  them. 
Besides  "  general  watchfulness  over  the  commercial  interests 
of  their  nation,  and  aid  to  their  countrymen  in  securing 
their  commercial  rights,"  Dr.  Woolsey  enumerates  the  fol- 
lowing duties  belonging  to  them:  Legalizing  by  their  seal, 
for  use  within  their  own  country,  acts  of  judicial  or  other 
tribunals,  and  authenticating  records  of  marriages,  births, 
and  deaths  among  their  countrymen  within  their  consular 
districts;  receiving  the  protests  of  masters  of  vessels,  grant- 
ing passports,  and  acting  as  depositaries  of  ships'  papers ; 
reclaiming  deserters  from  vessels,  providing  for  destitute 
sailors,  and  discharging  such  as  have  been  cruelly  treated; 
acting  in  behalf  of  the  owners  of  stranded  vessels,  and  ad- 
ministering on  personal  property  left  within  their  districts 
by  deceased  persons,  when  no  legal  representative  is  at 
hand.^  Although  consuls  are  not  ranted  as  ministers,  they 
are  sometimes  charged  with  diplomatic  duties.  The  Pres- 
ident appoints  some  fifty  consuls-general,  and  about  300 
consuls  and  consular  agents.  A  consul-general  exercises  a 
general  supervision  over  all  the  consuls  of  his  government 
within  the  country  to  which  he  is  sent.  Consuls  at  minor 
posts  receive  their  compensation  in  the  form  of  consular 
fees;  those  at  the  important  posts  receive  regular  salaries, 
ranging  from  $1,000  to  $5,000,  and  pay  the  fees  over  to  the 
Treasury. 

506.  President's  Relation  to  Foreign  Affairs.— The  Constitu- 
tion empowers  the  President  to  nominate,  and  by  and  with  the  con- 
sent of  the  'Senate,  to  appoint,  ambassadors,  other  public  ministers, 
and  consuls.  He  need  not  wait  until  Congress  shall  by  law  create 
these  offices.  Still,  there  are  two  effective  checks  upon  this  power: 
the  Senate  must  consent  to  the  appointment,  and  Congress  must  vote 
the  salary.  This  power  has  been  the  subject  of  controversy  between 
the  executive  and  Congress,  as  in  the  administrations  of  Presidents 
Jackson  and  Grant.  In  the  latter  case.  General  Garfield  and  others 
argued  in  the  House  of  Representatives  that  the  Constitution  creates 

'^International  Law  (6xh  Edition),  p.    154. 


POWERS  AND  DUTIES  OF  THE  PRESIDENT.      281 

diplomatic  offices,  and  that  the  President  can  appoint  as  many  men 
to  fill  them  as  he  sees  fit,  subject,  of  course,  to  the  foregoing  limita- 
tions. 

V.    Miscellaneous  Powers. 

Section  3. —  He  shall  from  time  to  time  give  to  the  Congress  infor- 
mation of  the  state  of  the  Union,  and  recommend  to  their  considera- 
tion such  measures  as  he  shall  judge  necessary  and  expedient;  he 
may,  on  extraordinary  occasions,  convene  both  houses,  or  either  of 
them,  and,  in  case  of  disagreement  between  them  with  respect  to  the 
time  of  adjournment,  he  may  adjourn  them  to  such  time  as  he  shall 
think  proper ;  he  shall  receive  ambassadors  and  other  public  minis- 
ters ;  he  shall  take  care  that  the  laws  be  faithfully  executed,  and  shall 
commission  all  the  officers  of  the  United  States. 

507.  The  President's  Message. — The  message  delivered 
at  the  opening  of  the  annual  session  of  Congress  pre- 
sents an  outline  history  of  the  government  for  the  year, 
with  the  President's  views  and  recommendations,  and  is 
accompanied  by  the  annual  reports  of  the  heads  of  depart- 
ments and  other  papers  collectively  known  as  the  executive 
documents.  Special  messages  relate  to  special  questions. 
The  communications  in  which  the  President  nominates  of- 
ficers, and  in  which  he  gives  the  reasons  why  he  refuses  to 
sign  bills,  are  also  called  special  messages. 

Presidents  Washington  and  Adams  delivered  their  annual  ad- 
dresses in  person  to  the  two  houses  in  joint  assembly,  and  each 
house  made  a  formal  reply.  This  procedure  was  in  imitation  of  the 
ceremony  attending  the  opening  of  Parliament.  President  Jefferson 
adopted  the  simpler  expedient,  which  his  successors  have  followed, 
of  sending  to  each  house  a  copy  of  a  written  message  to  be  read  by 
the  clerk  or  secretary.  President  Washington  sometimes  met  the 
Senate  in  person  to  confer  upon  executive  business;  and  it  was  the 
original  expectation  that  the  relations  of  the  executive  and  the 
upper  house  would  be  more  intimate  than  they  have  proved  to  be  in 
practice.  Even  now,  however,  one  of  the  standing  rules  of  the  Sen- 
ate provides  that  "when  the  President  of  the  United  States  shall 
meet  the  Senate  in  the  Senate  Chamber  for  the  consideration  of  ex- 
ecutive business,  he  shall  have  a  seat  on  the  right  of  the  presiding 
officer." 

508.  Special  Sessions. —  Presidents  John  Adams,  Jeflferson, 
Madison,  Van  Buren,  W.  H.  Harrison,  Pierce,  Lincoln,  Hayes,  Geve- 
land,  McKinley,  and  Roosevelt  have  found  it  necessary  to  call  special 


282  THE  AMERICAN  GOVERNMENT. 

sessions  of  Congress.  The  Senate  has  often  been  called  in  special 
session  to  transact  executive  business,  but  the  House  of  Representa- 
tives has  never  been  called  alone.  It  is  now  the  custom  for  a  Presi- 
dent, a  few  days  before  he  retires  from  office,  to  issue  a  proclama- 
tion calling  the  Senate  together  immediately  following  the  in- 
auguration of  his  successor.  This  gives  the  Senate  an  opportunity  to 
elect  a  president  pro  tempore,  and  the  President  an  opportunity  to 
nominate  his  Cabinet  and  other  officers.  No  President  has  ever 
had  occasion  to  adjourn  Congress.' 

509.  Reception  of  Ministers. — The  reception  of  a  min- 
ister is.  a  formal  acknowledgment  of  the  country  that  he 
comes  from  as  belonging  to  the  family  of  nations.  This  is 
the  practical  effect  of  the  President's  reception,  but  Con- 
gress can  no  doubt  reverse  such  recognition.  No  nation  is 
obliged  to  receive  as  a  minister  any  man  whom  another  na- 
tion may  choose  to  send  to  it;  the  man  himself  must  be 
an  acceptable  person  {persona  grata).  A  minister,  on  ar- 
riving in  Washington,  sends  his  papers  to  the  State  Depart- 
ment, and  in  due  time  it  is  signified  to  him  that  he  will  or 
will  not  be  received.  In  the  former  case,  he  visits  the  White 
House,  accompanied  by  the  Secretary  of  State,  who  intro- 
duces him  to  the  President.  He  delivers  an  address  to  the 
President,  and  receives  from  him  a  reply.  He  thus  becomes 
the  accredited  representative  of  his  country  to  the  United 
States. 

510.  The  Right  of  Dismissal. — A  minister  may  be  dis- 
missed for  various  reasons.  The  two  governments  may  no 
longer  have  a  good  understanding,  the  government  to  which 
the  minister  has  been  sent  may  no  longer  consider  the  coun- 
try from  which  the  minister  comes,  a  nation,  or  the  minister 


*  Parliament  does  not  convene  at  a  time  fixed  by  law,  or  adjourn  of  its 
own  motion.  It  is  convened  and  prorogued  by  the  crown.  However,  the  law 
requires  that  there  shall  be  at  least  one  session  every  year,  and  this  com- 
monly begins  in  February.  The  legal  limit  of  a  parliament  is  seven  years, 
but  this  is  rarely  reached.  The  crown  has  power  to  dissolve,  as  well  as  to 
convoke  and  prorogue  Parliament,  and  this  it  does  almost  invariably  before 
the  legal  limit  has  expired.  In  such  cases,  writs  of  elections  for  a  new 
House  of  Commons  must  issue  within  forty  days  of  the  dissolution.  The 
average  life  of  a  parliament  in  the  nineteenth  century  was  less  than  four 
years. 


POWERS  AND  DUTIES  OF  THE  PRESIDENT.      283 

may  become  an  unacceptable  person  {persona  non  grata). 
For  a  government  to  send  a  minister"  his  papers,  is  consid- 
ered equivalent  to  a  declaration  of  war. 

President  Washington  dismissed  M.  Genet,  the  French  minister, 
in  1793,  for  meddling  in  political  matters,  and  President  Cleveland 
dismissed  Lord  Sackville,  in  1888,  for  a  similar  offense.  Several 
nations  have  recalled  ministers  on  the  request  of  our  government. 
France  recalled  M.  Poussin,  in  1849;  England,  Mr.  Jackson,  in  1809, 
and  Sir  John  Crampton,  in  1856;  Russia,  M.  Catacazy,  in  1872. 

511.     To  Execute  the  Laws  and  Commission  Officers. 

— The  President  must  see  that  the  laws  are  faithfully  exe- 
cuted. For  this  purpose  he  is  clothed  with  ample  power. 
He  is  the  head  of  the  executive  department  of  the  govern- 
ment ;  he  appoints  officers ;  he  is  in  close  relations  with  Con- 
gress ;  he  is  commander  in  chief  of  the  army  and  navy,  and 
on  emergencies  can  call  out  the  militia  of  the  States.  More- 
over, there  is  an  obvious  propriety  in  his  commissioning  all 
officers,  civil,  military,  and  naval. 

The  President's  veto  power  is  treated  in  paragraphs  335- 
339,  inclusive,  of  this  work. 


CHAPTER  XXXIII. 

THE  EXECUTIVE  DEPARTMENTS. 

Article  II. 

512.  Creation  of  Executive  Departments  Assumed. — 

The  first  and  second  clauses  of  section  2,  Article  II.,  quoted 
in  the  last  chapter,  are  the  only  clauses  of  the  Constitution 
that  mention  executive  departments.  The  clauses  assume 
that  they  will  be  created,  and  by  implication  confer  power 
to  create  them.  In  fact,  several  such  departments  existed 
under  the  Confederation.  The  number,  the  names,  and  the 
functions  of  these  departments  were  wisely  left  to  the  discre- 
tion of  Congress.  Nine  have  been  created,  and  their  history 
and  organization  throw  much  light  on  the  growth  of  the 
government  and  on  the  distribution  of  executive  business. 
The  heads  of  the  executive  departments  receive  the  same 
salary,  $8,000. 

513.  Department  of  State. — The  Continental  Congress 
took  the  first  steps  toward  the  creation  of  the  State  Depart- 
ment. In  1775  it  created  the  Committee  of  Foreign  Corre- 
spondence, afterwards  called  the  Committee  of  Foreign  Af- 
fairs; in  1 78 1  it  established  the  Department  of  Foreign 
Affairs,  which,  presided  over  first  by  R.  R.  Livingston  and 
then  by  John  Jay,  transacted  its  foreign  business  down  to 
1789.  In  July  of  that  year  the  new  Congress  established  a 
new  department  of  the  same  name,  but  soon  changed  the 
name  to  Department  of  State,  which  it  has  since  borne. 

The  Secretary  of  State's  duties  are  not  very  strictly  de- 
fined by  law,  and  cannot  be.  Under  the  direction  of  the 
President,  he  executes  duties  relative  to  correspondence, 
commissions,  or  instructions  to  or  with  public  ministers  or 

(384) 


THE  EXECUTIVE  DEPARTMENTS.  285 

consuls  to  or  from  the  United  States.  The  originals  of 
treaties,  laws  and  foreign  correspondence,  together  with  the 
seal  of  the  United  States,  which  he  affixes  to  documents  that 
require  it,  are  in  his  custody.  He  also  authenticates  the 
President's  proclamations  with  his  signature.  But  his  prin- 
cipal business  is  to  conduct  the  foreign  affairs  of  the  coun- 
try, under  the  President';  direction.  The  Department  of 
State  is  the  first  of  the  departments  in  dignity,  and  the  Sec- 
retary of  State,  sometimes  called  the  Premier  in  imitation 
of  the  English  Premier,  is  the  head  of  the  Cabinet. 

514.  Department  of  the  Treasury. — The  first  steps  lead- 
ing to  the  Department  of  the  Treasury  were  also  taken  in 
1775.  In  1781  a  Finance  Department  took  the  place  of  the 
Board  of  Treasury,  which  in  1778  had  taken  the  place  of 
the  Treasury  Office  of  Accounts.  Robert  Morris,  to  whose 
financiering  the  country  owed  so  much,  was  the  first  Super- 
intendent of  this  department.  The  present  department  was 
established  by  Congress  in  September,  1789. 

The  Secretary  of  the  Treasury  cannot  be  a  person  engaged 
in  trade  or  commerce.  He  proposes  plans  for  the  public 
revenues  and  credit ;  prescribes  the  form  of  keeping  the  pub- 
lic accounts ;  makes  reports  annually  of  the  state  of  the 
finances,  and  special  reports  from  time  to  time  as  called 
upon,  or  as  the  exigencies  of  affairs  require;  superintends 
the  collection  of  the  revenue;  issues  warrants  upon  the 
Treasury  for  money  appropriated  by  Congress  for  various 
purposes,  and  performs  all  such  duties  connected  with  the 
fiscal  business  of  the  government  as  the  law  requires. 

515.  Bureaus  in  the  Treasury  Department. — There  are  in  the 
department  the  offices  of  th^  Comptroller ;  of  six  Auditors ;  of  the 
Treasurer,  Register,  Comptroller  of  the  Currency,  Commissioner  of 
Internal  Revenue,  Director  of  the  Mint,  and  Director  of  the  Bu- 
reau of  Engraving  and  Printing.  In  the  offices  of  the  Auditors  the- 
accounts  of  the  different  branches  of  the  public  service  are  audited, 
as  indicated  by  their  titles,  which  are  Auditor  for  the  Treasury  De- 
partment, Auditor  for  the  War  Department,  Auditor  for  the  Interior 
Department,  Auditor  for  the  Navy  Department,  Auditor  for  the 
State  and  other  Departments  and  Auditor  for  the  Post  Office  De- 


286  THE  AMERICAN  GOVERNMENT. 

partment ;  the  Comptroller  supervises  the  work  of  the  Auditors,  and 
hears  appeals  from  their  decisions.  The  Register  keeps  all  ac- 
counts of  receipts  and  expenditures,  and  is  the  bookkeeper  of  the 
government.  The  Treasurer  receives  and  keeps  the  moneys  of  the 
United  States,  and  pays  them  out  on  warrants  drawn  by  the  proper 
officers.  The  Comptroller  of  the  Currency  looks  after  the  circulation 
of  the  national  banks,  the  Commissioner  of  Internal  Revenue  super- 
vises that  branch  of  the  service,  and  the  duties  of  the  Directors  of 
the  Bureaus  of  Engraving  and  Printing  and  of  the  Mint  are  suffi- 
ciently indicated  by  their  titles. 

516.  Department  of  War. — The  War  Department  also 
antedates  the  Constitution.  As  nowr  organized,  it  dates  from 
August  7,  1789.  The  Secretary  of  War  has  charge  of  miU- 
tary  affairs,  under  the  President;  he  has  the  custody  of  all 
army  records,  the  superintendence  of  purchases  of  military 
supplies,  the  direction  of  army  transportation,  the  distribu- 
tion of  stores,  the  improvement  of  rivers  and  harbors,  and 
the  supply  of  arms  and  munitions  of  war. 

Besides  the  g^eneral  staff  corps,  under  the  Chief  of  Staff,  the  de- 
partment contains  eleven  bureaus,  the  names  of  which  indicate  the 
duties  of  their  heads,  viz.:  Adjutant-General's  Department,  Inspec- 
tor-General's Department,  Judge-Advocate-General's  Department, 
Quartermaster's  Department,  Subsistence  Department,  Medical  De- 
partment, Pay  Department,  Corps  of  Engineers,  Ordnance  Depart- 
ment, Signal  Corps,  Record  and  Pension  Office.  The  Military 
Academy  at  West  Point,  established  in  1802,  is  also  under  the  con- 
trol of  the  Department  of  War. 

517.  The  Department  of  Justice. — The  Office  of  the 
Attorney-General  was  established  in  1789,  and  was  reor- 
ganized as  the  Department  of  Justice  in  1870.  The  Attor- 
ney-General is  the  responsible  law-adviser  of  the  President 
and  the  heads  of  the  executive  departments. 

The  law  provides  that  no  head  of  a  department  shall  employ 
attorneys  or  counsel  at  the  expense  of  the  United  States,  but  that 
when  in  need  of  counsel  or  advice  he  shall  call  upon  the  Department 
of  Justice  to  attend  to  the  same.  The  officers  of  this  department 
must  pass  upon  all  titles  to  land  purchased  by  the  government  for 
forts  or  public  buildings.  They  must  also  prosecute  or  defend  all 
suits  in  the  Supreme  Court,  or  Court  of  Claims,  to  which  the  United 
States  is  a  party.     Besides  the  Attorney-General,  the  officers  of  the 


THE  EXECUTIVE  DEPARTMENTS.  287 

department  are  the  Solicitor-General,  several  Assistant  Attorney- 
Generals,  two  Solicitors  of  the  Treasury,  a  Solicitor  of  Internal  Rev- 
enue, and  a  Solicitor  for  the  Department  of  State.  The  District  At- 
torneys of  the  several  judicial  districts  are  also  subject  to  the  di- 
rection of  the  Attorney-General. 

518.  Post  Office  Department.— The  Post  Office  De- 
partment is  the  oldest  executive  department  of  the  govern- 
ment. In  July,  1775,  nearly  a  year  before  independence  was 
declared,  the  Continental  Congress  created  a  general  post 
office,  and  chose  Dr.  Franklin  Postmaster-General.  The 
Articles  of  Confederation  intrusted  the  establishing  and 
regulating  of  the  post  office  from  one  State  to  another 
throughout  .the  United  States  to  Congress.  On  the  organi- 
zation of  the  new  government  in  1789,  the  post  office  was 
continued,  and  it  was  not  until  1794  that  Congress  created 
the  present  department.  Its  head  is  the  Postmaster-Gen- 
eral, who  controls  a  larger  patronage  than  any  other  execu- 
tive officer  of  the  government. 

The  operations  of  the  department  are  shown  by  their  distribution 
among  the  four  Assistant  Postmasters-General. 

The  First  Assistant  has  charge  of  the  miscellaneous  correspond- 
ence, the  money-order  system,  salaries  and  allowances  to  postmasters, 
the  dead-letter  office,  and  the  division  of  post  office  supplies. 

The  Second  Assistant  has  charge  of  the  transportation  of  mails, 
including  the  arrangement  of  the  railway  mail  service  and  placing  the 
same  under  contract,  the  ocean  mail  steamship  service,  etc. 

The  Third  Assistant  is  charged  with  the  financial  business  of  the 
department.  He  has  oversight  also  of  the  division  of  postage  stamps, 
etc.,  and  the  registered  mail  system. 

The  Fourth  Assistant  is  charged  with  preparing  cases  for  the 
establishment,  discontinuance,  and  change  of  name  of  post  offices, 
the  appointment  of  postmasters,  the  filing  of  bonds  and  oaths,  the 
issuing  of  commissions,  the  oversight  of  post  office  inspectors,  and 
the  management  of  the  free  delivery  systems. 

519.  Department  of  the  Navy. — Under  the  Confedera- 
tion, the  management  of  the  navy  was  given  to  the  War 
Office,  which  also  controlled  it  for  some  time  under  the 
Constitution.  Congress  created  the  present  Department  of 
the  Navy  April  30,  1798.    The  Secretary  of  the  Navy  is  re- 


288  THE  AMERICAN  GOVERNMENT. 

quired  to  execute  such  orders  as  he  shall  receive  from  the 
President  relative  to  the  procurement  of  naval  materials, 
and  the  construction,  armament,  equipment,  and  employment 
of  vessels  of  war,  and  all  other  matters  connected  with  the 
navy. 

The  bureaus  are :  Navigation,  Yards  and  Docks,  Equipment,  Ord- 
nance, Construction  and  Repair,  Medicine  and  Surgery,  Supplies 
and  Accounts,  Steam  Engineering.  The  United  States  Naval 
Academy,  located  at  Annapolis,  Maryland,  established  in  1846,  is 
also  under  the  control  of  the  Navy  Department. 

520.  Department  of  the  Interior. — An  act  of  Congress 
approved  March  3,  1849,  established  the  Department  of 
the  Interior.  It  is  made  up  mainly  of  various  offices  that  had 
before  belonged  to  other  departments,  and  is  less  homoge- 
neous than  the  others.  The  Patent  Office  had  belonged  to 
the  State  Department ;  the  Land  Office,  to  the  Treasury  De- 
partment ;  the  Pension  Office,  to  the  War  and  Navy  Depart- 
ments ;  the  Office  of  Indian  Affairs,  to  the  War  Department. 
The  heads  of  these  several  offices  are  all  styled  Com- 
missioners, except  the  head  of  the  Land  Office,  who  is  called 
the  Surveyor-General.  In  1867  a  Department  of  Education 
was  created,  but  the  next  year  it  was  abolished,  and  a  bureau 
styled  the  Office  of  Education  was  established  in  the  Interior 
Department.  The  head  of  this  office  is  the  Commissioner 
of  Education.  His  principal  duty  is  to  collect  and  publish 
facts  and  statistics  in  regard  to  education  and  schools. 

521.  Department  of  Agriculture. — A  Department  of 
Agriculture,  so-called,  was  established  at  Washington  in 
1862.  It  was  neither  an  executive  department  nor  a  bureau 
in  such  department.  It  was  like  the  Department  of  Educa- 
tion as  originally  created.  The  law  creating  this  department 
declares  that  its  general  design  and  duties  "  shall  be  to  dif- 
fuse among  the  people  of  the  United  States  useful  informa- 
tion on  subjects  connected  with  agriculture  in  the  most  gen- 
eral and  comprehensive  sense  of  that  term,  and  to  procure, 
propagate,  and  distribute  among  the  people  new  and  valu- 
able seeds  and  plants."    It  was  put  in  charge  of  a  Commis- 


THE  EXECUTIVE  DEPARTMENTS.  289 

sioner  of  Agriculture.  In  1889  Congress  made  it  one  of  the 
executive  departments,  and  placed  it  under  the  charge  of  the 
Secretary  of  Agriculture.  The  Weather  Bureau  is  in  this 
department. 

522.  Department  of  Commerce  and  Labor. — An  act  of 
Congress  approved  February  14,  1903,  established  the  De- 
partment of  Commerce  and  Labor.  Its  province  is  to  pro- 
mote "  the  foreign  and  domestic  commerce,  the  mining, 
manufacturing,  shipping,  and  fishery  industries,  the  labor 
interests,  and  the  transportation  facilities."  , 

Numerous  bureaus  that  had  been  attached  to  older  departments 
were  transferred  to  the  new  one.  From  the  Department  of  the 
Treasury  were  taken  the  Lighthouse  Board,  the  Steamboat-Inspection 
Service,  the  Bureau  of  Navigation,  the  United  States  Shipping  Com- 
missioners, the  National  Bureau  of  Standards,  the  Coast  and  Geodetic 
Survey,  the  Bureau  of  Immigration,  and  the  Bureau  of  Statistics. 
The  Census  Office  was  transferred  from  the  Department  of  the  Inte- 
rior, and  the  Bureau  of  Foreign  Commerce  from  the  Department  of 
State.  The  Department  of  Labor  (so-called,  established  in  1888)  and 
the  Commission  of  Fish  and  Fisheries  were  made  parts  of  the  new 
executive  department.  Two  new  bureaus  were  created  within  it. 
These  are  the  Bureau  of  Manufactures  and  the  Bureau  of  Corpora- 
tions. 

523.  The  Cabinet;  Executive  Responsibility. — The  heads  of 
these  nine  Departments  are  popularly  called  the  Cabinet.  The  name 
is  not  found  in  the  Constitution  or  laws,  nor  is  the  Cabinet  itself  in 
any  way  a  legal  body.  The  law  creates  the  departments,  defines  the 
duties  of  their  heads,  and  the  Constitution  empowers  the  President 
to  require  their  opinions  in  writing  concerning  all  subjects  relating 
to  the  duties  of  their  several  offices.  The  frequent  meeting  of  these 
officers  as  a  council,  under  the  presidency  of  the  President,  to  discuss 
executive  business,  is  conducive  to  unity  and  strength  of  adminis- 
tration; but  such  meetings,  and  the  idea  that  these  executive 
officers  constitute  a  cabinet,  rest  wholly  upon  usage.  Washington 
called  these  heads  together  for  this  purpose,  and  the  precedeht  thus 
set,  which  he  borrowed  from  England,  has  been  since  followed.  The 
Cabinet,  as  such,  has  no  legal  duties  to  perform.  The  President 
defers  more  or  less  to  its  advice,  but  is  not  obliged  to  follow  it  in 
any  particular.  The  Constitution  holds  him,  and  not  his  advisers, 
responsible  for  the  performance  of  executive  business.  At  the  same 
time,  the  heads  of  departments  are  legally  responsible  so  far  as  their 
duties  are  defined  by  law.     -\t  first  the  Cabinet  consisted  of  the  Sec- 

AM.  GOV. — 19 


290  THE  AMERICAN  GOVERNMENT. 

retaries  of  State,  of  the  Treasury,  and  of  War,  and  the  Attorney- 
General.  The  Postmaster-General  did  not  become  a  member  until 
the  administration  of  General  Jackson.  The  other  secretaries  became 
members  on  the  creation  of  their  respective  departments.  No  offi- 
cial record  is  made  of  the  proceedings  of  the  Cabinet,  as  its  con- 
clusions are  recommendatory  only.  Neither  is  the  President's  office 
an  office  of  record;  all  executive  records  are  kept  in  the  several  de- 
partments. 

In  the  Federal  convention  various  efforts  were  made  to  dis- 
tribute executive  power  and  responsibility.  One  proposed  a  plural 
executive  (p.  249)  ;  another,  that  the  President  should  have  a  privy 
council,  i;onsisting  of  the  President  of  the  Senate,  the  Speaker  of  the 
House,  the  Chief  Justice,  and  the  heads  of  the  executive  departments, 
whose  duty  it  should  be  to  advise  him  in  such  matters  respecting  the 
execution  of  his  office  as  he  should  think  proper  to  lay  before  them, 
but  their  advice  should  not  be  binding,  nor  aflfect  his  responsibility 
for  the  measures  that  he  should  adopt.  The  Virginia  plan  proposed 
that  the  executive  and  a  convenient  number  of  the  judiciary  should 
compose  a  council  of  revision,  to  examine  every  act  of  Congress  be- 
fore it  took  effect,  and  that  the  dissent  of  the  said  council  should 
amount  to  a  rejection  of  such  act  unless  it  were  again  passed. 
Happily,   these  propositions  all   failed. 

524.  Articles  I.  and  II. — There  is  a  marked  difference  in  the 
ways  in  which  the  statesmen  of  1787  treated  the  legislative  and 
•the  executive  branches  of  the  government.  The  first  occupies  in  the 
Constitution  more  than  double  the  space  that  is  occupied  by  the 
second,  and  the  language  employed  is  also  more  specific  and  definite. 
This  is  partly  because  the  legislative  power,  by  its  very  nature,  is 
more  fundamental  than  the  executive  power ;  while  the  executive, 
also  by  its  very  nature,  is  incapable  of  as  strict  definition  and  limi- 
tation as  the  other.  The  more  carefully  the  executive  power,  as 
constituted  by  the  Constitution,  is  studied  in  the  light  of  the  de- 
velopment of  the  nation,  the  greater  will  its  range  of  application  ap- 
pear to  be.  It  is  admitted  that  the  President  of  the  United  States, 
although  elected  and  holding  his  office  for  but  a  limited  term,  is  one 
of  the  most  powerful  executive  officers  on  the  globe. 

Note. — The  author  of  The  Sources  of  the  Constitution  prints  some  inter- 
esting notes  of  a  conversation  held  with  Ex-President  Hayes,  September  30, 
1884.     An  abridgment  of  these  notes  is  given. 

Referring  to  the  action  of  a  President  independently  of  the  advice  of  the 
Cabinet,  he  said  he  himself  and  other  Presidents  had  so  acted  occasionally. 
As  to  the  general  relations  of  the  Cabinet,  Presidents  were  masters  of  the 
situation,  not  only  by  law,  but  by  the  fact  that  Cabinet  officers  were  appointed 
by  and  were  dependent  upon  the  executive.  The  custom  of  the  past  had 
varied;    some    Presidents    had    been    more    influenced    by    their    Cabinets    than 


THE  EXECUTIVE  DEPARTMENTS. 


291 


others;  President  Buchanan  was  much  worried  by  his  Cabinet,  because  not 
strong  enough  to  insist  on  his  own  will.  On  the  other  hand,  President 
Lincoln  had  decided  on  his  Emancipation  Proclamation  without  consulting  his 
Cabinet,  to  whom  he  read  it  over  merely  for  suggestion  and  amendment. 
He  (President  Hayes)  had  once  decided  a  measure,  overruling  his  Cabinet. 
He  knew  them  to  be  opposed  to  it  and  did  not  ask  their  views,  but  announced 
his  own  policy  and  carried  it  out.  In  matters  of  a  department,  he  gave 
greater  weight  to  the  opinion  of  the  Secretary  of  that  department  if  the 
Secretary  opposed  his  own  views;  but  on  two  occasions  he  had  decided  and 
carried  out  matters  against  the  wishes  of  the  Secretary  of  the  department 
affected.  He  had  done  so  in  the  case  of  his  Secretary  of  the  Treasury,  whose 
opinion  he  usually  valued.  In  each  case,  knowing  the  certainty  of  diverse 
views  from  the  Secretary,  he  had  not  asked  those  views,  but  had  announced 
to  the  Secretary  his  ov.a  policy  and  decision.  As  to  whether  the  President 
or  the  Secretaries  usually  initiated  business  at  meetings  of  the  Cabinet,  he 
said  that  there  was  no  uniform  practice;  but  that  every  Secretary  was  full 
of  ideas  as  to  his  own  department.  When  wishing  to  irrtroduce  a  measure, 
the  Secretary  usually  consulted  the  President  privately.  If  the  President 
disfavored  the  proposed  measure,  it  was  of  course  dropped.  In  fact,  no 
measures  could  succeed  except  by  the  President's  own  act  in  either  introducing 
them  or  approving  them. 

Few  writers  or  public  persons  have  understood  the  real  power  of  the 
American  executive.  Practically,  the  President  has  the  nation  in  his  hand. 
He  is  commander  in  chief  of  the  army  and  navy,  and  has  control  of  foreign 
affairs.  He  could  at  any  time  force  Congress  into  war  with  foreign  powers. 
The  complicated  relations  with  foreign  powers  rendered  this  always  easy. 
By  law.  Congress  had  the  power  to  declare  war,  but  the  real  power  was  with 
the  executive;  if  but  once  war  exists,  the  President  has  the  "war  powers," 
and  no  man  has  defined  what  those  are,  or  placed  a  limit  on  them.  The 
executive  power  is  large  because  not  defined  in  the  Constitution.  The  real 
test  has  never  come,  because  the  Presidents  have,  down  to  the  present,  been 
conservative,  or  what  might  be  called  conscientious  men,  and  have  kept  within 
limited  range.  There  is  an  unwritten  law  of  usage  that  has  come  to  regulate 
an  average  administration;  but  if  a  Napoleon  ever  became  President,  he  could 
make  the  executive  almost  what  he  wished  to  make  it.  The  war  power  of 
President  Lincoln  went  to  lengths  which  could  scarcely  b»  surpassed  in 
despotic  principle.  President  Lincoln  had  been  practically  a  dictator.  The 
scope  of  the  power  had  never  been  really  realized,  and  the  practical  use 
of  power,  even  by  an  ordinarily  strong  President,  was  greater  than  the  books 
ever  described.  Much  of  the  legislation  of  Congress  is  ordinarily  initiated 
by  the  President.  The  Constitution  did  not  provide  for  this,  but  in  practice 
it  is  done.  A  large  part  of  legislation  was  first  considered  in  Cabinet,  and 
then  started  in  Congress  by  -contact  privately  between  the  Secretaries  and  the 
Committees  of  Congress.  The  President's  message  is  without  legal  force,  and 
Congress  can  be  influenced  by  it  or  not  as  it  sees  fit;  but  if  one  were  to  com- 
pare the  messages  with  legislations,  it  will  be  found  that  legislation  largely 
resulted  from  the  suggestions  of  messages.  Really,  the  message  made  a  public 
statement  of  matters,  which,  less  officially,  were  pressed  upon  Congress  by 
Cabinet  ministers.  While  it  was  a  fact  that  no  regular  channel  of  necessary 
legislative  initiative  was  possessed  by  the  President,  he,  nevertheless,  did 
initiate  a  large  proportion  of,  sometimes  the  leading,  legislation  of  his  admin- 
istration. He  bad  also  a  certain  amount  of  influence  in  preventing  legislation 
that  was  distasteful  to  him,  or  even  in  shaping  and  amending  bills  in  Congress, 
by  intimating  unofficially  his  disapproval  and  possible  veto. — Page  165,  et  seq. 


1^  .■'|^t<ctLi<^^^<^'^^^ 


CHAPTER  XXXIV. 

VESTING  THE  JUDICIAL  POWER. 

Article  III. 

References. 

The  following  special  references  will  be  found  useful:  The 
Writings  of  John  Marshall,  etc.  (a  compilation  of  his  great  consti- 
tutional decisions)  ;  Coxe,  Judicial  Power  and  Unconstitutional  Leg- 
islation; Constitutional  History  of  the  United  States  as  seen  in  the 
Development  of  American  Lazu, —  a  Course  of  Lectures  before  the 
Political  Science  Association  of  the  University  of  Michigan  (Thomas 
M.  Cooley,  Henry  Hitchcock,  George  W.  Biddle,  Charles  A.  Kent, 
and  Daniel  H.  Chamberlain)  ;  Stevens,  Sources  of  the  Constitution, 
Chap.  VII. 

525.  The  Period  of  the  Confederation. — The  ninth  of 
the  Articles  of  Confederation  made  Congress  the  court  of 
last  resort  on  appeal  in  all  disputes  and  differences  between 
two  or  more  States  concerning  boundary,  jurisdiction,  or 
any  other  cause  whatever.  The  same  article  also  gave  Con- 
gress authority  to  establish  courts  for  the  trial  of  piracies 
and  felonies  committed  on  the  high  seas,  and  courts  for  re- 
viewing and  determining  finally  all  cases  of  captures.  Con- 
gress acted  in  the  first  capacity  on  one  or  more  occasions, 
and  also  organized  courts  such  as  the  second  provision  called 
for.  But  neither  Congress  nor  these  courts  had  the  power 
to  execute  their  judicial  judgments  when  they  were  ques- 
tioned. The  State  courts  even  construed  the  Articles  of 
Confederation.  Evils  both  numerous  and  serious  resulted 
from  this  state  of  things.  Hence  it  was  natural  that  all  the 
plans  of  government  laid  before  the  Convention  proposed  a 
judicial  department  of  equal  rank  and  dignity  with  the  leg- 
islative and  executive  departments.* 

'  On  this  topic,  consult  Jameson,  Essays  on  the  Constitutional  History  of 
the   V.   S.,   "The  Predecessor  of   the   Supreme   Court." 

(292) 


VESTING  THE  JUDICIAL  POWER.  393 

Section  i. — The  judicial  power  of  the  United  States  shall  be  vested 
in  one  Supreme  Court,  and  in  such  inferior  courts  as  the  Congress 
may  from  time  to  time  ordain  and  establish.  The  judges,  both  of 
the  Supreme  and  inferior  courts,  shall  hold  their  offices  during  good 
behavior,  and  shall,  at  stated  times,  receive  for  their  services  a  com- 
pensation, which  shall  not  be  diminished  during  their  continuance  in 
office. 

526.  Judiciary  Act  of  1789. — The  Constitution  itself 
created  the  judicial  department  of  the  government.  It  said 
there  should  be  one  Supreme  Court,  and  defined  its  juris- 
diction. But  the  creation  of  inferior  courts,  and  all  matters 
of  detail  in  regard  to  the  Supreme  Court,  it  left  to  the  dis- 
cretion of  Congress.  Congress  gave  these  provisions  effect 
by  enacting  the  Judiciary  Act,  approved  by  President  Wash- 
ington September  24,  1789.  This  act  has  undergone  minor 
changes,  but  in  its  essential  features  it  still  stands,  a  monu- 
ment to  the  genius  of  Oliver  Ellsworth,  of  Connecticut,  af- 
terwards Chief  Justice,  who  drew  the  bill,  and  to  the  First 
Congress. 

527.  Provisions  of  the  Judiciary  Act. — This  act  pro- 
vided that  the  Supreme  Court  should  consist  of  five  Asso- 
ciate Justices  in  addition  to  the  Chief  Justice,  and  that  it 
should  hold  two  sessions  annually  at  the  seat  of  government. 
It  provided  for  District  Courts  to  be  held  by  District  Judges, 
to  sit  four  times  a  year,  each  district  to  consist  of  a  State 
or  some  defined  portion  of  a  State.     It  also  created  three 

Circuit  Courts,  each  one  to  sit  twice  a  year  in  each  of  the 
several  districts  composing  it,  and  to  consist,  when  fully 
organized,  of  two  Justices  of  the  Supreme  Court  and  of  the 
District  Judge  for  the  district  where  the  court  sat.  It  also 
created  the  office  of  Attorney-General,  and  provided  for  a 
marshal  in  every  judicial  district. 

528.  Present  Organization  of  the  Original  Courts. — 
At  first  the  Supreme  Court  consisted  of  the  Chief  Justice 
and  five  Associate  Justices ;  in  1807  the  number  of  Associ- 
ates was  increased  to  six;  in  1837  to  eight;  in  1863  to  nine; 
in  1866  Congress  enacted  that  no  more  vacancies  should  be 
filled  until  the  number  was  reduced  to  six ;  and  then,  in  1869 


294  THE  AMERICAN  GOVERNMENT. 

the  number  was  made  eight  again.  The  Supreme  Court 
holds  one  regular  session  a  year  at  Washington,  beginning 
the  second  Monday  of  October. 

The  admission  of  new  States,  the  growth  of  population, 
and  the  consequent  increase  of  business  has  multiplied  the 
number  of  District  Courts  until  there  are  now  over  seventy. 
The  times  and  places  of  holding  these  courts  are  regulated 
by  law.    The  rule  is  two  terms  a  year  in  every  district. 

At  first  there  were  no  Circuit  Judges  so  called;  the  Cir- 
cuit Courts  were  held  by  the  Supreme  and  District  Judges. 
Congress  in  1801  created  sixteen  Circuit  Judgeships,  but 
the  next  year  repealed  the  act  and  legislated  the  judges  out 
of  office.  In  1869  Congress  created  nine  Circuit  Judge- 
ships, one  each  for  the  nine  circuits,  and  in  1891  as  many 
more;  one  or  two  additional  judges  have  since  been  provided 
for  most  of  the  circuits,  until  now  there  are  in  all  twenty- 
seven  Circuit  Judges.  The  Circuit  Courts  are  held  in  the 
several  districts  of  the  several  circuits  by  the  Circuit  Justice, 
as  the  Supreme  Justice  assigned  to  the  circuit  is  called,  or 
by  a  Circuit  Judge,  or  by  the  District  Judge  of  the  district, 
sitting  alone,  or  by  any  two  of  the  said  judges  sitting  to- 
gether. The  Circuit  Justice  must  visit  each  district  in  his 
circuit  at  least  once  in  two  years.  The  sessions  of  these 
courts  are  held  at  stated  times  fixed  by  law,  and  at  special 
times  fixed  by  the  judges.  There  must  be  at  least  one  ses- 
sion in  each  district  each  year. 

529.  The  Circuits,  etc. — First  Circuit,  four  districts  and  four 
District  Judges,  consists  of  Maine,  Massachusetts,  New  Hampshire, 
and  Rhode  Island.  The  Second  Circuit,  six  districts  and  seven 
judges,  of  Connecticut,  New  York,  and  Vermont.  The  Third  Cir- 
cuit, five  districts  and  six  judges,  of  Delaware,  New  Jersey,  and 
Pennsylvania.  The  Fourth  Circuit,  eight  districts  and  eight  judges, 
of  Maryland,  North  Carolina,  South  Carolina,  Virginia,  and  West 
Virginia.  The  Fifth  Circuit,  fifteen  districts  and  thirteen  judges,  of 
Alabama,  Florida,  Georgia,  Louisiana,  Mississippi,  and  Texas.  The 
Sixth  Circuit,  nine  districts  and  nine  judges,  of  Kentucky,  Michigan, 
Ohio,  and  Tennessee.  The  Seventh  Circuit,  five  districts  and  five 
judges,  of  Illinois,   Indiana,  and   Wisconsin.    The   Eighth   Circuit, 


I  VESTING  THE  JUDICIAL  POWER.  295 . 

fourteen  districts  and  fifteen  judges,  of  Arkansas,  Colorado,  Iowa, 
Kansas,  Minnesota,  Missouri,  Nebraska,  North  Dakota,  South  Da- 
kota, Wyoming,  and  Utah.  The  Ninth  Circuit,  seven  districts  and 
seven  judges,  of  California,  Idaho,  Montana,  Nevada,-  Oregon,  and 
Washington.  There  are  9  circuits,  27  Circuit  Judges,  72  districts 
and  74  District  Judges.  Each  judicial  district  has  its  own  district 
attorney,  clerk,  and  marshal.  For  the  Federal  District  and  Terri- 
tories, see  Chap.  XXXVI. 

530.  Judge's  Tenure  of  Office. — Each  United  States 
judge  holds  office  during  good  behavior.  There  is  no  legal 
way  of  ousting  a  judge  but  by  conviction  on  impeachment, 
and  hence  no  other  Mray  of  showing  that  his  behavior  is  bad. 
If  a  judge  becomes  mentally  incompetent  to  perform  his 
duties,  he  can  be  removed  from  the  bench  only  in  that  way. 

Nothing  is  more  essential  to  a  judicial  system  than  the 
independence  of  the  judges.  The  United  States  judges  are 
rendered  independent  of  the  people  by  vesting  their  appoint- 
ments in  the  President  and  Senate,  and  independent  of  the 
appointing  power  by  making  the  tenure  good  behavior.  If 
they  were  elected,  they  might  court  popular  favor  to  secure 
reelections ;  if  they  were  appointed  for  limited  terms,  as 
four  or  six  years,  they  might  court  the  President  and  the 
Senate  to  secure  reappointments  on  the  expiration  of  their 
terms.  The  Constitution  gives  the  President  and  the  Vice 
President,  Senators  and  Representatives  fixed  terms ;  but 
these  all  have  political  power,  which  is  far  more  liable  to 
abuse  than  judicial  power. 

531.  Compensation  of  the  Judges. — The  compensation 
of  the  judges  cannot  be  diminished  during  their  continu-' 
ance  in  office.  If  Congress  could  diminish  it,  the  judges 
would  be  dependent  on  that  body  and  the  independence  of 
the  judiciary  would  be  destroyed.  The  Federalist  very  just- 
ly observes :  "  In  the  general  course  of  human  nature,  a 
power  over  a  man's  subsistence  amounts  to  a  power  over  his 
will."  Congress  may  reduce  the  salaries,  prospectively,  al- 
though it  has  never  done  so,  but  the  reduction  can  take  effect 
only  on  the  appointment  of  new  judges.  The  judges'  sal- 
aries, however,  may  be  raised  after  their  appointment,  and 


296  THE  AMERICAN  GOVERNMENT. 

they  frequently  have  been  raised.  The  President's  salary 
can  neither  be  increased  nor  diminished  during  his  term  of 
office;  but  there  is  no  reason  for  the  first  restriction  in  the 
case  of  the  judges,  since  they  have  nothing  to  do  with  mak- 
ing laws  and  fixing  salaries,  as  the  President  has.  When 
the  Circuit  Judges  were  legislated  out  of  office  in  1802,  the 
constitutionality  of  the  act  was  denied,  and  it  is  held  now 
by  some  authorities  that  it  was  unconstitutional  to  refuse 
them  their  salaries. 

At  first,  the  Chief  Justice  received  a  salary  of  $4,000,  the  Associate 
Justices  $3,500,  and  the  District  Judges  $1,000  to  $1,800.  As  fixed  in 
1903,  the  salaries  are:  the  Chief  Justice,  $13,000;  the  Associates, 
$12,500;  the  Circuit  Judges,  $7,000;  the  District  Judges,  $6,000.  An 
act  approved  April  10,  i86g,  provides  that  any  judge  who  has  held 
his  commission  ten  years,  and  attained  the  age  of  seventy  years,  may 
resign  his  office  and  continue  to  dravy^  his  salary  during  life. 

The  members  of  the  Supreme  Court  divide  the  nine  Circuits 
among  themselves  according  to  their  convenience.  In  1903,  for  in- 
stance, the  assignment  was  as  follows :  First  Circuit,  Mr.  Justice 
Holmes;  Second  Circuit,  Mr.  Justice  Peckham;  Third  Circuit,  Mr. 
Justice  Brown ;  Fourth  Circuit,  Mr.  Chief  Justice  Fuller ;  Fifth  Cir- 
cuit, Mr.  Justice  White;  Sixth  Circuit,  Mr.  Justice  Harlan;  Seventh 
Circuit,  Mr.  Justice  Day;  Eighth  Circuit,  Mr.  Justice  Brewer; 
Ninth  Circuit,  Mr.  Justice  McKenna. 


CHAPTER  XXXV. 

THE  EXTENT  OF  THE  JUDICIAL  POWER. 

Article  III. 

Section  2,  Clause  I. — The  judicial  power  shall  extend  to  all  cases 
in  law  and  equity  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which  shall  be  made,  under  their 
authority;  to  all  cases  affecting  ambassadors,  other  public  ministers, 
and  consuls;  to  all  cases  of  admiralty  and  maritime  jurisdiction; 
to  controversies  to  which  the  United  States  shall  be  a  party;  to  con- 
troversies between  two  or  more  States ;  between  a  State  and  citizens 
of  another  State ;  between  citizens  of  different  States ;  between  citi- 
zens of  the  same  State  claiming  lands  under  grants  of  different 
States ;  and  between  a  State,  or  the  citizens  thereof,  and  foreign 
States,  citizens,  or  subjects. 

532.  Cases. — A  case,  within  the  meaning  of  the  Consti- 
tution, is  a  subject  on  which  the  judicial  power  is  capable 
of  acting,  and  which  has  been  submitted  to  it  in  a  manner 
required  by  law.  The  judicial  power  extends  to  such  cases, 
and  to  nothing  else.  The  powers  of  the  national  courts  are 
very  great,  but  until  a  case  comes  before  them  they  cannot 
act  in  any  manner. 

Some  of  the  States  have  had  councils  of  revision,  consisting  of 
the  superior  judges  and  other  officers,  charged  with  reviewing  the 
enactments  of  the  legislature  as  soon  as  passed,  and  setting  aside 
such  as  were  deemed  unconstitutional.  Such  a  proposition  was  made 
in  the  Federal  Convention,  but  the  judges  were  wisely  limited  to 
hearing  and  determining  cases. 

533.  Law  and  Equity. — The  judicial  power  extends  "  to 
all  cases  in  law  and  equity  arising,"  etc.  This  language 
refers  to  the  different  modes  of  proceeding  in  the  courts  of 
common  law  and  the  courts  of  equity,  recognized  in  the 
English  system  of  jurisprudence. 

(297) 


298  THE  AMERICAN  GOVERNMENT. 

In  vindicating  the  equity  jurisdiction  of  the  national  courts,  Mr. 
Hamilton  says  in  The  Federalist:  "It  is  the  peculiar  province, 
for  instance,  of  a  court  of  equity  to  relieve  against  what  are  called 
hard  bargains.  Tliese  are  contracts,  in  which,  though  there  may 
have  been  no  direct  fraud  or  deceit  sufficient  to  invalidate  them  in  a 
court  of  law,  yet  there  may  have  been  some  undue  and  unconsciona- 
ble advantage  taken  of  the  necessities  or  misfortunes  of  one  of  the 
parties,  which  a  court  of  equity  would  not  tolerate.  In  such  cases, 
where  foreigners  were  concerned  on  either  side,  it  would  be  impossi- 
ble for  the  Federal  judicatories  to  do  justice  without  an  equitable,  as 
well  as  a  legal  jurisdiction.  Agreements  to  convey  lands  claimed 
under  the  grants  of  different  States,  may  afford  another  example  of 
the  necessity  of  an  equitable  jurisdiction  in  the  Federal  courts."' 

534.  The    Constitution,     Laws,    and    Treaties. — The 

judicial  power  extends  to  all  cases  in  law  and  equity  arising 
under  the  Constitution,  laws,  and  treaties  of  the  United 
States.  This  makes  it  the  duty  of  the  judges  to  interpret 
and  to  construe  these  three  great  divisions  of  the  law.  The 
need  of  a  judiciary  having  this  wide  jurisdiction  is  obvious. 
Hamilton  wrote  in  The  Federalist  that  "  thirteen  independent 
courts  of  final  jurisdiction  over  the  same  causes  arising  upon 
the  same  laws,  is  a  hydra  in  government  from  which  nothing 
but  contradiction  and  confusion  can  proceed." 

"The  judges  declare  the  law,  they  do  not  make  it,"  says  Chief- 
Justice  Marshall;  "the  judicial  power  has  no  will  in  any  case.  Judi- 
cial power  as  contra-distinguished  from  the  power  of  the  law  has  no 
existence :  courts  are  the  mere  instruments  of  the  law,  and  can  will 
nothing." 

535.  Classes  of  Cases. — The  judicial  power  extends  to 
the  following  subjects :  (i)  all  cases  in  law  and  equity  aris- 
ing under  the  Constitution,  laws,  and  treaties  of  the  United 
States;  (2)  cases  affecting  public  ministers  and  consuls; 
(3)  cases  of  admiralty  and  maritime  jurisprudence;  (4) 
controversies  to  which  the  United  States  is  a  party;  (5) 
controversies  between  two  or  more  States;  (6)  controver- 
sies between  a  State  and  citizens  of  another  State;  (7)  con- 
troversies between  citizens  of  different   States ;    (8)    con- 

>   No.    80. 


THE  EXTENT  OF  THE  JUDICIAL  POWER.         299 

troversies  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States ;  (9)  controversies  between 
a  State,  or  its  citizens,  and  foreign  states,  citizens,  or  sub- 
jects. 

Ministers  are  the  accredited  agents  of  foreign  governments  to  our 
own,  and  the  extension  of  the  State  judicial  power  to  cases  affecting 
them  would  at  once  lead  to  troublesome  complications ;  foreign  powers 
hold  the  United  States  responsible  for  the  treatment  of  their  repre- 
senatives,  not  the  States.  It  is  as  clear  that  the  Federal  courts 
should  have  exclusive  jurisdiction  in  admiralty  and  maritime  juris- 
prudence, as  that  Congress  should  have  exclusive  povyer  to  legislate 
concerning  commerce.  The  United  States  could  not  with  either 
safety  or  dignity  become  a  party  to  a  suit  in  any  but  their  own  tribu- 
nals;  while  the  same  tribunals,  free  from  local  jealousy  and  con- 
tention, and  conducted  in  a  national  spirit,  are  the  fittest  ones  in  the 
world  to  adjudicate  controversies  between  States,  between  citizens  of 
different  States,  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States,  and  between  a  State,  or  the  citizens 
thereof,  and  foreign  states,  citizens,  or  subjects. 

The  language,  "  to  all  cases  affecting  ambassadors,"  etc.,  has  been 
the  subject  of  judicial  construction.  The  Supreme  Court  has  de- 
cided, for  example,  that  an  indictment  for  an  assault  upon  a  public 
minister  is  not  such  a  case  within  the  meaning  of  the  Constitution.' 

536.  Chisholm  v.  Georgia. — The  sixth  of  the  above 
provisions  extended  the  judicial  power  to  controversies  be- 
tween a  State  and  citizens  of  another  State ;  and  the  ninth 
extended  it  to  controversies  between  States  and  foreign 
citizens  or  subjects.  It  seems  to  have  been  assumed  while 
the  Constitution  was  in  course  of  ratification,  that  these  pro- 
visions related  only  to  suits  brought  by  the  States,  and  did 
not  authorize  suits  by  such  parties  against  them ;  or,  at  the 
utmost,  that  the  States  should  not  be  made  defendants  in 
suits  against  their  will.  Soon,  however,  such  citizens  and 
subjects  began  to  bring  actions  against  States,  and  States 
began  to  take  alarm.  It  was  not  consonant  with  the  ideas' 
then  current  that  States  should  be  brought  before  a  legal 
tribunal  by  a  private  individual,  whether  an  American  or  a 

*  The  U.    S.  V.  Ortega,   11    Wheaton   467. 


300  THE  AMERICAN  GOVERNMENT. 

foreigner.  The  sole  question  was  whether  such  suits  were 
authorized  by  the  Constitution.  This  question  was  brought 
to  an  issue  in  the  celebrated  case  of  Chisholm  v.  Georgia, 
decided  by  the  Supreme  Court  in  1793.^  Delivering  the 
judgment  of  the  court,  Chief -Justice  Jay  answered  the  ques- 
tion emphatically  in  the  affirmative.  This  decision,  which 
unfortunately  was  rendered  by  a  divided  court,  at  once  in- 
creased the  alarm.  The  result  was  that  Congress  proposed, 
and  a  sufficient  number  of  States  ratified,  the  following 
amendment,  which  took  eflFect  in  1798: 

537.  Amendment  XI. — The  judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit  in  law  or  equity  com- 
menced or  prosecuted  against  one  of  the  United  States  by  citizens  of 
another  State,  or  by  citizens  or  subjects  of  any  foreign  state. 

"  This  amendment  at  once  made  such  actions  as  that  of 
Chisholm  v.  Georgia  impossible.  A  State  may  still  be  sued 
by  another  State  or  by  a  foreign  state,  but  not  by  its  citi- 
zens or  subjects.  It  has  also  been  decided  that  the  prohibi- 
tion extends  to  the  citizens  of  a  State.  Thus,  in  Haus  v. 
Louisiana  the  Supreme  Court  held :  '  a  state  cannot,  without 
its  consent,  be  sued  in  a  Circuit  Court  of  the  United  States 
by  one  of  its  citizens,  upon  a  suggestion  that  the  case  is 
one  that  arises  under  the  Constitution  of  the  United  States.'  * 
It  is  a  common  principle  of  law  that  a  sovereign,  as  a  State 
of  the  American  Union  or  an  independent  power,  cannot  be 
made  a  defendant  in  a  lawsuit,  under  ordinary  conditions. 
The  assumption  is  that  such  State  or  power  will  do  what  is 
right  without  compulsion.  Still  it  should  be  added,  that 
such  sovereign  may,  by  an  act  of  its  legislature,  consent  to 
be  made  such  defendant,  and  States  have  sometimes  done 
so.  It  should  also  be  remarked  that  the  eleventh  Amend- 
ment did  not  interfere  with  the  right  of  the  States  to  use  the 
National  courts;  whatever  rights  the  States  had  under  the 
original  Constitution  they  still  have." 


^  2  Dallas  419. 
»  134  U.  S.   1. 


CHAPTER  XXXVI. 

THE  JURISDICTION  OF  THE  SEVERAL  COURTS. 

Article  III. 

Section  2,  Clause  2. — In  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls,  and  those  in  which  a  State  shall  be 
party,  the  Supreme  Court  shall  have  original  jurisdiction.  In  all 
the  other  cases  before  mentioned,  the  Supreme  Court  shall  have 
appellate  jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions 
and  under  such  regulations  as  the  Congress   shall  make. 

538.  Kinds  of  Jurisdiction. — A  court  has  original  juris- 
diction of  a  case  when  the  case  may  begin  in  that  court ;  ap- 
pellate jurisdiction,  when  a  case  begun  in  some  lower  court 
may  be  brought  before  it  for  review  by  some  process  pro 
vided  by  law,  as  by  appeal  and  writ  of  error.  A  court  has 
exclusive  jurisdiction  of  a  case  when  no  other  court  can  take 
cognizance  of  it,  or  administer  a  particular  remedy  with 
reference  to  it.  Two  or  more  courts  have  concurrent  juris- 
diction of  a  case  when  it  may  be  tried  in  either  of  them  at 
the  will  of  the  suitor. 

539.  Original  Jurisdiction  of  the  Supreme  Court. — 
The  Supreme  Court  has  original  jurisdiction  of  cases  affect- 
ing ambassadors,  other  public  ministers,  and  consuls,  and 
cases  to  which  a  State  is  a  party.  The  Judiciary  Act  of  1789 
gave  the  court  a  wider  original  jurisdiction  than  the  Consti- 
tution had  conferred,  but  the  court  decided  in  1803  that 
Congress  had  no  such  power,  and  that  the  provision  was 
unconstitutional.^  On  the  other  hand,  Congress  has  divided 
the  original  jurisdiction  of  the  Supreme  Court  with  inferior 
courts,  and  such  legislation  the  court  has  sustained.  Chief- 
Justice  Waite  discusses  the  subject  at  length  in  one  of  his 


*  Marbury   v.   Madison,    i    Cranch    137. 

(301) 


302  THE  AMERICAN  GOVERNMENT. 

decisions,  and  reaches  the  conclusion  that  it  rests  with  Con- 
gress to  say  to  what  extent  it  shall  grant  to  the  inferior 
courts  jurisdiction  in  cases  where  the  Constitution  vests 
original  jurisdiction  in  the  Supreme  Court.^  The  substance 
of  such  decisions  is,  that  Congress  cannot  enlarge  the  origT 
inal  jurisdiction  of  the  court,  but  may  divide  it  with  inferior 
courts. 

540.  Appellate  Jurisdiction. — Subject  to  the  regulation 
of  Congress,  the  appellate  jurisdiction  of  the  Supreme  Court 
is  coextensive,  both  as  to  law  and  fact,  with  the  jurisdiction 
of  the  inferior  National  courts  and  with  the  State  courts 
in  respect  to  Federal  questions.  Appeals  or  writs  of  error 
may  be  taken,  under  certain  prescribed  limitations,  from  the 
District  and  the  Circuit  Courts  in  cases  involving  the  fol- 
lowing questions :  the  jurisdiction  of  the  court ;  prize  cases ; 
capital  or  otherwise  infamous  crimes ;  the  'construction  or 
application  of  the  national  Constitution ;  the  constitutional- 
ity of  a  law  of  Congress  or  the  validity  or  construction  of  a 
treaty,  and  the  conformability  of  a  State  law  to  the  Na- 
tional Constitution.  Appeals  also  lie  to  the  Supreme  Court 
from  the  Supreme  Courts  of  the  Territories. 

The  Constitution  is  silent  concerning  appeals  to  the  National 
courts  from  the  State  courts;  but  clause  2,  Article  VI.,  makes  the 
Constitution  and  the  laws  of  the  United  States  enacted  in  pursuance 
thereof,  and  all  treaties  made  under  the  authority  of  the  United 
States,  the  supreme  law  of  the  land,  and  the  judges  in  every  State 
are  bound  thereby,  anything  in  the  constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding.  In  pursuance  of  this  clause,  Con- 
gress provided  in  the  twenty-fifth  section  of  the  Judiciary  Act  for 
the  appeal  to  the  Supreme  Court  of  all  final  decisions  and  decrees 
of  State  courts  infringing  upon  the  validity  of  the  National  Consti- 
tution, laws,  and  treaties.  Some  of  the  States,  notably  Virginia, 
denied  absolutely  that  the  Constitution  conferred  any  such  power, 
but  the  Supreme  Court  strongly  affirmed  it  in  one  decision  after  an- 
other, and  its  existence  is  now  universally  admitted.  Congress  has 
also  provided  for  the  removal  from  the  State  courts  to  the  National 
courts  of  cases  involving  questions  drawing  into  construction  the 


*  Ames  V.  Kansas,   1 1 1   U.   S.  449. 


THE  JURISDICTION  OF  THE  SEVERAL  COURTS.  303 

Constitution,  laws,  and  treaties  of  the  United  States.  Exercising 
these  powers,  the  Supreme  Court  has  set  aside  State  laws  as  uncon- 
stitutional far  more  frequently  than  National  laws. 

541.  Circuit  Courts. — The  Circuit  Courts  are  courts  of 
both  civil  and  criminal  jurisdiction.  In  civil  cases  they  have 
original  jurisdiction  in  cases  where  the  matter  in  dispute  ex- 
ceeds $2,000,  exclusive  of  costs,  in  copyright  cases,  in  patent- 
right  cases,  and  in  many  others.  In  criminal  cases  they 
have  original  jurisdiction,  and  in  capital  cases  exclusive 
jurisdiction.  The  Circuit  Courts  have  no  appellate  juris- 
diction whatever. 

542.  Circuit  Courts  of  Appeals. — An  act  approved 
March  3,  1891,  provided  for  the  appointment  of  an  addi- 
tional Circuit  Judge  in  each  circuit,  and  created  in  each  cir- 
cuit a  Circuit  Court  of  Appeals  to  consist  of  three  judges,  of 
whom  two  constitute  a  quorum.  The  Justices  of  the  Su- 
preme Court,  the.  Circuit  Judges,  and  the  several  District 
Judges  are  competent  to  sit  as  judges  of  this  court  within 
their  respective  circuits ;  the  District  Judges  to  sit,  however, 
only  in  the  case  of  the  absence  of  the  Justice  of  the  Supreme 
Court  assigned  to  the  circuit,  or  one  or  both  of  the  Circuit 
Judges.  These  courts  hold  a  term  once  a  year  in  the  sev- 
eral circuits,  in  certain  designated  places:  In  the  first  cir- 
cuit, Boston ;  in  the  second.  New  York ;  in  the  third,  Phila- 
delphia ;  in  the  fourth;  Richmond ;  in  the  fifth,  New  Orleans ; 
in  the  sixth,  Cincinnati ;  in  the  seventh,  Chicago ;  in  the 
eighth,  St.  Louis ;  in  the  ninth,  San  Francisco,  and  in  such 
other  places  in  the  several  circuits  as  the  law  may  from 
time  to  time  designate. 

As  the  name  implies,  these  are  exclusively  courts  of  ap-' 
peals.  They  can  review,  on  appeal  or  writ  of  error,  the 
final  decisions  of  the  District  and  Circuit  Courts  in  all  cases 
other  than  those  that  are  directly  reviewable  by  the  Su- 
preme Court,  and  their  decisions  are  in  many  instances  final, 
as  in  patent,  revenue,  criminal,  and  admiralty  cases.  These 
courts  were  organized  to  relieve  the  Supreme  Court  of  a 
part  of  its  overgrown  business. 


304  THE  AMERICAN  GOVERNMENT. 

543.  District  Courts. — The  District  Courts  have  a  limit- 
ed range  of  jurisdiction  in  civil  cases,  and  especially  in  cases 
in  admiralty.  They  have  also  jurisdiction  of  many  crimes 
and  offenses  under  the  laws  of  the  United  States,  committed 
within  their  several  districts  or  upon  the  high  seas. 

544.  Court  of  Claims. — No  sovereign  state  can  be  sued 
without  its  own  permission.  If  it  could  be  sued  in  the  tri- 
bunals of  another  state,  it  would  not  be  sovereign ;  and  if  in 
its  own  tribunals,  that  would  be  an  implication  that  it  was 
unwilling  to  do  justice  without  coercion.  Formerly,  persons 
having  claims  against  the  United  States  that  they  could  not 
adjust  through  the  executive  departments  had  no  redress  but 
to  petition  Congress  for  relief.  This  method  caused  much 
delay  and  injustice,  and  also  imposed  burdensome  duties 
upon  Senators  and  Representatives  in  investigating  cases. 
So  Congress,  in  1855,  created  the  Court  of  Claims  to  adju- 
dicate certain  classes  of  claims  against  the  United  States. 
Since  then,  however.  Congress  has  given  a  limited  jurisdic- 
tion over  such  cases  to  the  District  and  Circuit  Courts.  In 
both  instances,  however.  Congress  must  appropriate  money 
to  pay  the  judgments.  The  Court  of  Claims  consists  of  a 
Chief  Justice  and  four  Judges. 

545.  Courts  of  the  Federal  District  and  the  Territo- 
ries.— The  judicial  power  as  dealt  with  in  the  Constitution 
directly  relates  only  to  the  States.  But  it  was  plainly  neces- 
sary for  Congress  to  provide  courts  for  the  District  of  Co- 
lumbia and  the  Territories,  and  power  to  do  so  was  indirect- 
ly conveyed  by  the  constitutional  provisions  in  relation  to  the 
District  and  Territories.  The  Supreme  Court  of  the  District 
consists  of  a  chief  justice  and  five  associate  justices.  Be- 
sides the  general  term,  at  which  two  or  more  judges  may  sit, 
the  justices  of  this  court  hold  singly  special  terms,  district 
courts,  and  criminal  courts.  The  justices  are  paid  a  salary 
of  $6,000.  The  Court  of  Appeals  of  the  District  of  Colum- 
bia consists  of  a  chief  justice  and  two  associate  justices,  the 
first  paid  a  salary  of  $7,500,  the  others  $7,000.  The  inferior 
courts  of  the  District  are  a  police  court  and  courts  held  by 


"THE  JURISDICTION  OF  THE  SEVERAL  COURTS.  305 

justices  of  the  peace.  The  judicial  power  in  the  Territories 
is  generally  vested  in  a  chief  justice  and  associate  justices, 
who  hold  a  general  term  and  special  terms,  or  what  we  may 
call  a  supreme  court  and  district  courts.  The  Circuit  Courts 
of  Appeals  have  an  appellate  jurisdiction  as  respects  the  Ter- 
ritorial courts.  Alaska,  Arizona,  and  Hawaii  are  assigned 
to  the  Ninth  Circuit,  New  Mexico  and  Oklahoma  to  the 
Eighth  Circuit.  • 

546.    Concurrent  Jurisdiction  of  State  and  National  Courts. — 

The  Constitution  does  not,  in  terms,  or  by  necessary  implication,  ex- 
clude the  State  courts  from  the  judicial  jurisdiction  that  it  bounds, 
save  in  the  cases  of  ministers  and  consuls  and  in  cases  to  which  a 
State  is  a  party.  Save  in  these  particulars,  the  whole  subject  was 
left  to  the  discretion  of  Congress.  Congress  has  given  the  National 
courts  exclusive  jurisdiction  in  certain  classes  of  cases,  such  as  in 
patent  rights  and  admiralty,  but  within  certain  limits  it  grants  to  the 
State  courts  a  civil  jurisdiction  concurrent  with  that  of  the  National 
courts.  This  is  permitted  and  not  vested ;  for  the  Supreme  Court  has 
decided  that  "  Congress  cannot  vest  any  portion  of  the  judicial  power 
of  the  United  States,  except  in  courts  ordained  and  established  by 
itself."  In  a  large  range  of  legal  business,  therefore,  the  suitor  may 
appeal  to  the  State  or  the  National  courts,  as*  he  sees  fit ;  the  ultimate 
authority,  of  course,  residing  in  the  latter.  Some  oflfenses  against 
the  National  laws  may  be  prosecuted  in  the  State  courts,  as  those 
against  the  postal  laws. 


CHAPTER  XXXVII. 

TRIAL  BY  JURY. 

Article  III. — Amendments. 

Section  2,  Clause  3. — The  trial  of  all  crimes,  except  in  cases  of 
impeachment,  shall  be  by  jury;  and  such  trial  shall  be  held  in  the 
State  where  the  said  crimes  shall  have  been  committed ;  but  when 
not  committed  within  any  State,  the  trial  shall  be  at  such  place  or 
places  as  the  Congress  may  by  law  have  directed. 

Amendment  V. — No  person  shall  be  held  to  answer  for  a  capital 
or  otherwise  infamous  crime,  unless  on  a  presentment  or  indictment 
of  a  grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or 
in  the  militia  when  in  actual  service  in  time  of  war  or  public  danger ; 
nor  shall  any  person  be  subject  for  the  same  offense  to  be  twice  put 
in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself,  nor  be  deprived  of  life,  liberty, 
or  property  without  due  process  of  law ;  nor  shall  private  property 
be  taken  for  public  use  without  just  compensation. 

Amendment  VI. — In  all  criminal  prosecutions,  the  accused  shall 
enjoy  the  right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been  committed, 
which  district  shall  have  been  previously  ascertained  by  law,  and  to 
be  informed  of  the  nature  and  cause  of  the  accusation ;  to  be  con- 
fronted with  the  witnesses  against  him ;  to  have  compulsory  process 
for  obtaining  witnesses  in  his  favor,  and  to  have  the  assistance  of 
counsel  for  his  defense. 

Amendment  VII. — In  suits  at  common  law,  where  the  value  in 
controversy  shall  exceed  twenty  dollars,  the  right  of  trial  by  jury 
shall  be  preserved,  and  no  fact  tried  by  a  jury  shall  be  otherwise  re- 
examined in  any  court  of  the  United  States,  than  according  to  the 
rules  of  the  common  law. 

Amendment  VIII. — Excessive  bail  shall  not  be  required,  nor 
excessive  fines  imposed,  nor  cruel  and  unusual  punishment  inflicted. 

Amendment  XIV.,  Section  /.—  ...  No  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States ;  nor  shall  any  State  deprive  any  person 

(306) 


TRIAL  BY  JURY.  307 

of  life,  liberty,  or  property  without  due  process  of  law,  nor  deny  to 
any  person  within  its  jurisdiction  the  equal  protection  of  the  laws. 

547.  Trial  by  Jury. — Trial  by  jury,  especially  in  crimi- 
nal cases,  has  for  centuries  been  one  of  the  most  jealously 
guarded  rights  of  the  English-speaking  people.  Magna 
Charta,  granted  by  King  John  in  1215,  declared:  "  No  free- 
man shall  be  taken,  or  imprisoned,  disseized,  or  outlawed, 
or  banished,  or  any  way  injured ;  nor  will  we  pass  upon, 
nor  send  upon  him,  unless  by  the  legal  judgment  of  his 
'peers,  or  by  the  law  of  the  land."  This  means  that  no  man 
should  be  condemned  in  any  of  the  king's  courts,  unless  first 
tried  by  his  peers.  In  England  trial  by  one's  peers  means 
trial  by  his  equals,  as  a  peer  by  peers;  in  the  United  States 
it  means  a  trial  by  an  impartial  jury.  In  the  national  courts, 
the  right  of  trial  by  jury  is  preserved  in  all  criminal  cases, 
and  in  all  civil  cases  when  the  amount  in  controversy  is 
more  than  twenty  dollars.  A  trial  jury  consists  of  twelve 
men,  and  a  verdict  requires  unanimity.  Impeachment  has 
been  discussed  in  another  place. 

548.  Place  of  Trial. — To  save  trouble  and  expense  to 
both  the  defendant  and  the  prosecution,  it  is  provided  that 
criminal  cases  must  be  tried  in  the  State  and  judicial  dis- 
trict where  the  crime  is  committed.  There  the  witnesses  are 
likely  to  be  found.  The  original  rule  required  the  holding 
of  a  court  having  criminal  jurisdiction  in  every  State,  and 
suggested  the  State  as  the  territorial  unit  of  the  District 
Courts.  Amendment  VI.  makes  the  place  of  trial  still  more 
definite;  it  must  be  within  a. judicial  district  previously  de- 
termined by  law.  Crimes  committed  in  the  District  of  Co- 
lumbia are  tried  in  that  District;  crimes  committed  in  the 
Territories,  in  the  Territories  where  they  are  committed. 
The  rule  governing  other  crimes  the  law  thus  defines :  "  The 
trial  of  all  offenses  committed  upon  the  high  seas  or  else- 
where, out  of  the  jurisdiction  of  any  particular  State  or  dis- 
trict, shall  be  in  the  district  where  the  offender  is  found, 
or  into  which  he  is  first  brought." 

549.  Right  to  a  Speedy  Trial,  etc. — In   former  times 


3o8  THE  AMERICAN  GOVERNMENT. 

the  postponement  or  denial  of  trial  in  criminal  cases  was  a 
great  abuse.  Innocent  men  were  often  imprisoned,  and 
then  denied  an  opportunity  to  vindicate  themselves.  Their 
trials  were  often  secret,  and  at  a  distance  from  the  prisoner's 
residence,  thus  cutting  him  off  from  the  public  knowledge 
and  the  sympathy  of  his  friends.  Such  abuses  of  power 
are  precluded  by  the  above  provisions. 

550.  The  Grand  Jury. — There  are  two  juries  known  to 
the  law,  the  grand  jury  and  the  petit  jury.  The  first  indicts 
the  accused,  the  second  tries  him.  A  grand  jury  consists  of 
any  number  of  men,  from  fifteen  to  twenty-three.  On  the 
empaneling  of  a  grand  jury,  the  judge  charges  it  to  inquire 
into  all  offenses  against  the  laws  of  the  United  States  com- 
mitted in  the  district,  and  to  report  its  findings.  It  sits  in 
secret,  and  twelve  members  must  concur  in  any  presentment 
or  indictment  that  it  finds.  It  must  first  decide  that  a  crime 
has  beefi  committed,  and  then  that  there  is  or  is  not  sufficient 
testimony  against  the  accused  to  justify  a  formal  trial.  Man- 
ifestly, this  deliberate  mode  of  procedure  applied  to  cases 
arising  in  the  army  and  navy  in  times  of  war  and  public 
danger,  would  be  destructive  of  military  discipline,  and  so 
the  Constitution  here  leaves  the  way  open  for  the  more  sum- 
mary processes  of  military  courts. 

551.  Presentment  and  Indictment. — A  presentment  is 
an  accusation  by  a  grand  jury  charging  an  oflFense  based 
upon  their  own  knowledge,  or  upon  evidence  before  them, 
and  is  not  made  at  the. suit  of  the  government.  An  indict- 
ment is  formally  drawn  up  by.  a  prosecuting  officer  of  the 
government  and  laid  before  the  jury  with  the  evidence.  If 
the  members  of  the  jury  think  the  evidence  such  as  to  war- 
rant a  prosecution  of  the  case,  they  endorse  on  the  back  of  the 
paper  "  a  true  bill,"  or  "  found  " ;  but  if  they  think  the  accu- 
sation groundless,  they  throw  the  bill  out,  or  endorse  it  "  not 
a  true  bill,"  or  "  not  found."  If  the  jury  presents  a  person, 
he  must  then  be  regularly  indicted  before  he  can  be  put  on 
trial.  If  a  bill  is  not  found,  the  accused  goes  fr^e,  but  he 
may  be  indicted  by  a  second  grand  jury. 


TRIAL  BY  JURY.  309 

552.  Jeopardy  of  Life  or  Limb. — "  Put  in  jeopardy  of 
life  or  limb  "  is  a  common-law  phrase  meaning  put  on  trial 
for  some  criminal  offense.  A  person  once  tried  for  an  of- 
fense and  acquitted,  cannot  be  put  on  trial  for  the  same  of- 
fense the  second  time.  This  is  one  of  the  great  bulwarks  of 
personal  liberty.  Without  it,  the  government  might  subject 
the  citizen  or  subject  to  constant  persecution,  or  a  man's  ene- 
mies might  subject  him  to  constant  annoyance. 

553.  No  Man  Compelled  to  be  a  Witness  against  Him- 
self.— Another  great  legal  bulwark  of  English  liberty  is  the 
provision  that  no  one  shall  be  compelled  to  be  a  witness 
against  himself.  '  In  former  times,  it  was  common  to  convict 
criminals,  and  especially  slaves  or  other  despicable  persons, 
on  their  own  testimony,  extorted  by  some  brutal  mode  of  ex- 
amination. Men  were  racked,  or  otherwise  put  to  the  torture 
and  confession  was  thus  forced  from  them.  In  justification 
of  this  method,  it  was  held  that  a  man  conscious  of  guilt 
would  make  a  plain  confession.  "  As  if,"  says  Justice  Story, 
."  a  man's  innocence  were  to  be  tried  by  the  hardness  of  his 
constitution,  and  his  guilt  by  the  sensibility  of  his  nerves." 
In  some  countries  accused  persons  are  still  compelled  to  give 
evidence  against  themselves. 

554.  Taking  Private  Property  for  Public  Use. — The 
justice  of  the  rule  in  regard  to  taking  private  property  for 
public  use  is  too  obvious  for  extended  remarks.  If  the  gov- 
ernment wants  certain  land  for  a  customhouse  or  an  arsenal, 
it  can  have  the  land ;  what  is  called  eminent  domain,  or  the 
right  of  the  public  to  use  private  property  for  public  use, 
gives  it  power  to  take  the  land  it  wants ;  but  it  must  pay  a 
just  compensation.  If  the  government  and  the  owner  of  the 
property  cannot  agree  upon  a  price,  the  government  con- 
demns the  land,  and  a  jury  is  empaneled  to  assess  the  dam- 
ages. 

555.  The  Common  Law. — The  Common  Law  of  England  con^ 
sists  of  the  old  legal  customs  of  the  country.  It  is  called  the  un- 
written law  {lex  non  scripta)  in  contradistinction  to  the  statute  or 
written  law   {lex  scripta).    The  common  law  originated  in  the  de- 


310  THE  AMERICAN  GOVERNMENT. 

cisions  of  judges  and  the  usages  of  political  bodies ;  the  statute  law, 
in  formal  acts  of  Parliament.  The  common  law  was  introduced  into 
the  English  colonies  at  their  planting,  and  is  now  in  force  in  all  of 
the  States,  except  Louisiana,  save  where  it  has  been  modified  or  set 
aside  by  legislation.  The  expression  "  suits  at  common  law  "  is  used 
in  opposition  to  suits  in  equity  or  in  maritime  jurisdiction.  When 
any  fact  once  tried  by  a  jury  is  reexamined  in  any  court  of  the 
United  States,  the  rules  of  the  common  law  must  be  observed.  Re- 
examination means  a  new  trial.  The  court  that  tried  the  case  may 
grant  such  trial,  or  the  case  may  be  carried  to  a  higher  court  on  a 
writ  of  error  or  by  an  appeal.  A  writ  of  error  removes  the  cause  for 
reexamination  as  respects  the  law,  but  not  the  fact ;  an  appeal  re- 
moves it  for  examination  in  both  particulars. 

556.  Due  Process  of  Law. — Amendment  V.  assumes 
due  process  of  law  in  respect  to  the  National  judiciary; 
Amendment  XIV.  imposes  it  upon  all  the  States,  and  besides 
the  same  rule  is  found  in  the  State  constitutions.  The  Su- 
preme Court  has  said  it  "  is  intended  as  an  additional  security 
against  the  arbitrary  spoliation  of  property." 

The  words  "  due  process  "  are  incapable  of  close  definition.  They 
mean,  according  to  the  Supreme  Court,  a  process  "  which,  following 
the  forms  of  law,  is  appropriate  to  the  case,  and  just  to  the  parties  to 
be  affected.  .  .  The  clause  in  question  means,  therefore,  that  there 
can  be  no  proceeding  against  life,  liberty,  or  property  which  may 
result  in  the  deprivation  of  either,  without  the  observance  of  those 
rules  established  in  our  system  of  jurisprudence  for  the  security  of 
private  rights."  *  Judge  Cooley  says  "  life,  liberty,  and  property  are 
representative  terms,  and  are  intended,  and  must  be  understood  to 
cover  every  right  to  which  a  member  of  the  body  politic  is  entitled 
under  the  law."* 

557.  Amendment  VIII. — This  article  is  copied  from  the 
English  Bill  of  Rights  of  1688.  Its  provisions  were  in- 
corporated in  that  celebrated  document  to  protect  the  citi- 
zen against  the  oppression  of  government,  and  they  were 
made  a  part  of  the  American  Bill  of  Rights  for  the  same 
reason. 

558.  ^Limitations  of  the  Foregoing  Provisions. — With  a  single 
exception,  all   the   constitutional   provisions   treated   in   this  chapter 


'  Harlan  v.  Rec.  Dist.  No.   io8,   iii   U.  S.  707. 

3  Story,  Commentaries  on  the  Constitution,  f  1948- J 950  (4th  edition). 


TRIAL  BY  JURY.  3II 

relate*  exclusively  to  the  courts  of  the  United  States.  Whether,  under 
State  laws,  capital  crimes  shall  be  tried  by  juries,  whether  an  accused 
person  shall  be  twice  put  in  jeopardy  of  life  or  limb,  whether  bail 
shall  be  excessive  or  punishments  cruel  or  unusual, —  it  is  for  the 
States  to  say.  The  single  exception  is  the  clause  quoted  from 
the  Fourteenth  Amendment.  This  is  the  only  instance  in  which  the 
National  Constitution  has  attempted  directly  to  regulate  the  State 
judiciaries.  The  State  constitutions,  however,  contain  similar  limita- 
tions upon  State  judicial  power. 


CHAPTER  XXXVIII. 
TREASON. 
Article  III. 

559.  The  Crime  of  Treason. — Treason  aims  at  the  over- 
throw of  the  established  government.  It  tends  to  unsettle 
and  destroy  the  very  foundations  of  civil  society.  It  is  a 
crime  of  which  only  a  person  owing  allegiance  to  a  govern- 
ment can  be  guilty.  A  man  cannot  be  a  traitor  to  a  foreign 
country,  unless  he  enlists  in  its  army  or  becomes  naturalized. 
Hence  treason  is  regarded  as  the  highest  of  crimes,  and  a 
traitor  as  the  most  odious  of  criminals. 

The  common  law  of  England  recognizes  two  kinds  of  treason.  It 
is  petit  treason  for  a  wife  to  kill  her  husband,  or  for  a  servant  to  kill 
his  master;  but  high  treason  relates  to  the  state,  and  includes 
attempting  the  life  of  the  sovereign  as  well  as  waging  war  against 
him. 

560.  Abuses  of  the  Punishment  of  Treason. — Tyranni- 
cal governments  have  taken  advantage  of  the  universal  sen- 
timent against  treason  to  accomplish  their  own  selfish  pur- 
poses. In  England,  for  example,  the  common  law  contained 
no  definition  of  treason,  and  left  large  discretion  to  the 
courts  to  declare  what  acts  were  treasonable.  The  judges, 
who  held  their  offices  at  the  favor  of  the  crown,  sometimes 
proved  themselves  only  too  ready  to  serve  the  power  upon 
which  they  were  dependent.  They  invented  constructive 
treasons ;  that  is,  by  arbitrary  construction  of  the  law  and  by 
distorting  facts,  they  made  treason  of  offenses  that  were  not 
so  in  reality.  To  put  an  end  to  such  abuses  required  the 
vigorous  interposition  of  Parliament,  as  well  as  the  loud  re- 
monstrances of  the  people.  Nor  is  it  in  monarchies  alone 
that  the  power  inherent  in  society  to  punish  treason  has  been 

(312) 


TREASON.  313 

abused.  In  the  words  of  The  Federalist,  "  New-fangled  and 
artificial  treasons  have  been  the  great  engines  by  which  vio- 
lent factions,  the  natural  offspring  of  free  governments,  have 
usually  worked  their  alternate  malignity  on  each  other."  * 
To  guard  against  such  evils,  the  Convention  inserted  a  defi- 
nition of  treason  in  the  Constitution,  and  defined  the  mode  of 
its  proof,  leaving  nothing  on  either  point  to  the  discretion  of 

either  Congress  or  the  courts. 

• 
Section  3,  Clause  i. — Treason  against  the  United  States  shall  con- 
sist only  in  levying  war  against  them,  or  in  adhering  to  their  ene- 
mies, giving  them  aid  and  comfort.  No  person  shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court. 

561.  Levying  War. — To  levy  war  is  to  make  war,  an 
overt  act.  Chief-Justice  Marshall  has  said :  "  War  must  be 
actually  levied  against  the  United  States.  However  flagi- 
tious may  be  the  crime  of  conspiring  to  subvert  by  force 
the  government  of  our  country,  such  conspiracy  is  not  trea- 
son. To  conspire  to  levy  war,  and  actually  to  levy  war, 
are  distinct  offenses.  .  .  .  If  a  body  of  men  be  actually 
assembled  for  the  purpose  of  affecting  by  force  a  treasonable 
purpose,  all  those  who  perform  any  part,  however  minute, 
or  however  remote  from  the  scene  of  action,  and  who  are 
actually  leagued  in  the  general  conspiracy,  are  to  be  con- 
sidered as  traitors.  But  there  must  be  an  actual  assembling 
of  men  for  the  treasonable  purpose  to  constitute  a  levying  of 
war."  ^ 

562.  Giving  an  Enemy  Aid  and  Comfort. — The  second 
form  of  treason  is  not  so  easily  defined.  Aid  and  comfort 
may  be  given  to  an  enemy  in  many  different  ways.  How- 
ever, for  a  citizen  to  sell  the  enemy  of  his  country  provisions, 
cannon,  horses,  ships,  etc.,  to  be  used  in  the  prosecution  of 
war  against  it,  or  to  render  such  enemy  personal  assistance, 
would  be  treason. 


•  No.  43. 

'  Ex  parte  Bolltnan,  4  Cranch   126. 


314  THE  AMERICAN  GOVERNMENT. 

563.  Modes  of  Conviction  — In  the  modes  prescribed 
for  conviction,  fear  of  the  abuse  of  power  is  seen  again.  In 
the  first  mode  of  conviction  two  witnesses  to  the  same  overt 
act  are  essential.  The  clause  also  guards  the  accused  against 
the  consequences  of  his  own  confession,  real  or  alleged ;  only 
confession  in  open  court,  that  is,  public  confession  when  he 
is  on  trial,  will  be  accepted  as  a  basis  of  conviction. 

On  the  last  point  Justice  Story  may  be  quoted :  "  It  has  been  well 
remarked  that  confessions  are  the  weakest*  and  most  suspicious  of 
all  testimony;  ever  liable  to  be  obtained  by  artifice,  false  hopes, 
promises  of  favor,  or  menaces ;  seldom  remembered  accurately,  or 
reported  with  due  precision;  and  incapable  in  their  nature  of  being 
disproved  by  other  negative  evidence.  To  which  it  may  be  added, 
that  it  is  easy  to  be  forged,  and  the  most  difficult  to  guard  against."* 

Section  3,  Clause  2. — The  Congress  shall  have  power  to  declare 
the  punishment  of  treason,  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture,  except  during  the  life  of  the  per- 
son attainted. 

564.  The  Punishment  Declared. — In  1790  Congress  en- 
acted that  treason  should  be  punished  with  death  by  hanging. 
In  1862  it  enacted  two  modes  of  punishment,  at  the  discre- 
tion of  the  court:  the  traitor  should  suffer  death  and  his 
slaves  be  made  free ;  or  he  should  be  imprisoned  not  less  than 
five  years,  be  fined  not  less  than  $10,000,  and  his  slaves  be 
made  free,  the  fine  to  be  levied  on  any  property,  real  or  per- 
sonal, except  slaves,  that  he  might  possess.  In  the 
second  case  the  criminal  should  also  be  forever  incapable  of 
holding  office  under  the  United  States.  At  present  the  pun- 
ishment is  death,  or,  at  the  discretion  of  the  court,  im- 
prisonment at  hard  labor  for  fiv^e  years  and  a  fine  of  not  less 
than  $10,000,  with  the  same  disqualification  as  to  holding 
office.  Without  this  clause,  Congress  would  have  a  perfect 
right  to  define  the  punishment  of  ti  eason ;  and  it  was  intro- 
duced, no  doubt,  to  furnish  an  opportunity  to  limit  the  effects 
of  attainder. 

565.  The  Common  Law  Punishment. — According  to 

*  Commentaries,  §   1802. 


TREASON.  315 

the  common  law,  a  person  adjudged  guilty  of  high  treason 
was  drawn  to  the  gallows,  at  first  on  the  ground  or  pave- 
ment, afterwards  on  a  sledge  or  hurdle ;  he  was  hanged  by 
the  neck  and  cut  down  alive;  his  entrails  were  taken  out 
and  burned  before  his  face ;  his  head  was  cut  off ;  his  body 
was  divided  into  four  parts,  and  his  head  and  quarters  were 
then  placed  at  the  king's  disposal, —  the  whole  proceeding 
being  summed  up  in  the  phrase,  "  hanged,  drawn  and  quar- 
tered." 

566.  Attainder  of  Treason. — According  to  the  common 
law,, a  man  found  guilty  of  treason  was  said,  by  a  figure  of 
speech,  to  be  attinctus,  attainted,  tainted,  stained,  soiled,  and 
disgraced.  The  attainder  or  treason  attached  to  the  offender 
the  moment  that  the  judge  delivered  sentence  of  judgment 
upon  him.  By  an  extension  of  the  figure,  the  attainder 
worked  corruption  of  the  blood  of  the  person  attainted,  and 
also  forfeiture  of  his  estate. 

The  far-reaching  significance  of  the  old  rules  of  law  in  relation  to 
attainder,  is  well  explained  by  Mr.  Justice  Story :  "  By  corruption  of 
blood  all  inheritable  qualities  are  destroyed ;  so  that  an  attainted 
person  can  neither  .inherit  lands  nor  other  hereditaments  from  his 
ancestors,  nor  retain  those  he  is  already  in  possession  of,  nor  trans- 
mit them  to  any  other  heir.  And  this  destruction  of  all  inheritable 
qualities  is  so  complete,  that  it  obstructs  all  descents  to  his  posterity, 
whenever  they  are  obliged  to  derive  a  title  through  him  to  any  estate 
of  a  remoter  ancestor.  So  that  if  a  father  commits  treason,  and  is 
attainted  and  suffers  death,  and  then  the  grandfather  dies,  his  grand- 
son cannot  inherit  any  estate  from  his  grandfather;  for  he  must 
claim  through  his  father,  who  would  convey  to  him  no  inheritable 
blood.  .  In  addition  to  this  most  grievous  disability,  the  person 
attainted  forfeits,  by  the  common  law,  all  his  lands,  and  tenements, 
and  rights  of  entry,  and  rights  of  profits  in  the  lands  or  tenements, 
which  he  possesses.  And  this  forfeiture  relates  back  to  the  time  of 
the  treason  committed,  so  as  to  avoid  all  intermediate  sales  and  in- 
cumbrances; and  he  also  forfeits  all  his  goods  and  chattels  from  the 
time  of  his  conviction."* 

567.  Power  of  Congress  9ver  Attainder. — The  com- 
mon law  connected  attainder  with  judgment  of  treason,  and 


•  Commentaries,  %  1299. 


3l6  THE  AMERICAN  GOVERNMENT. 

declared  its  consequences  to  be  corruption  of  blood  and  for- 
feiture of  estates.  The  Constitution  leaves  it  to  Congress  to 
say  whether  attainder  shall  follow  conviction  or  not,  and  if 
so  what  the  consequences  shall  be;  only  the  attainder  shall 
not  work  corruption  of  blood  or  forfeiture  except  during 
the  life  of  the  person  attainted.  Congress  has  never  includ- 
ed attainder  in  the  punishment  of  treason,  and  the  word  is 
not  found  in  our  laws.  An  act  to  suppress  insurrection, 
approved  July  17,  1862,  sometimes  called  the  Confiscation 
Act,  provided  that  the  property  of  six  classes  of  persons 
named,  engaged  in  the  rebellion  or  giving  it  aid  and  com- 
fort, should  be  seized  and  confiscated  and  the  proceeds  ap- 
plied to  the  support  of  the  army  of  the  United  States.  But 
the  operation  of  this  act  was  limited,  as  will  appear  below. 
The«  present  law  expressly  declares :  "  No  conviction  or 
judgment  shall  work  corruption  of  blood  or  forfeiture." 

568.  Meaning  of  the  Limitation. — A  question  has  arisen 
as  to  the  phrase,  "  except  during  the  life  of  the  person  at- 
tainted." This  question  is  whether  the  phrase  limits  the  time 
within  which  the  corruption,  or  forfeiture,  shall  be  worked, 
or  the  time  that  the  forfeiture  shall  run  in  case  there  be  one. 
Must  the  forfeiture  be  worked  in  the  life  of  the  traitor  ?  Or 
shall  the  property  of  a  traitor  that  has  been  confiscated,  be 
restored  to  his  heirs  on  his  death?  If  the  first  be  the  mean- 
ing, then  the  dam  imposed  by  conviction  of  treason  would 
be  removed  by  the  death  of  the  oflFender,  and  property  could 
pass  by,  as  from  grandfather  to  grandson.  The  question 
has  not  been  judicially  determined,  and  is  an  open  one. 

In  the  case  of  real  estate,  President  Lincoln  understood  the  lan- 
guage in  the  second  of  the  two  senses.  To  meet  his  view,  Congress 
adopted  a  joint  resolution  construing  the  act  of  July  17,  1862,  as  fol- 
lows :  "  Nor  shall  any  punishment  or  proceedings  under  said  act  be 
so  construed  as  to  work  a  forfeiture  of  the  real  estate  of  the  offender 
beyond  his  natural  life."    The  Supreme  Court  has  sustained  the  act. 

569.  Treason  against  a  State. — The  Articles  of  Confederation 
did  not  recognize  treason  against  the  United  States;  all  treason  in 
that  period  was  treason  against  a  State.  A  motion  to  give  Congress 
the  sole  power  to  declare  its  punishment  was  lost  in  the  Convention, 


TREASON.  317 

so  that  the  powers  of  the  States  to  punish  treason  remained  un- 
changed. Practically  these  powers  have  amounted  to  little;  but  Mr. 
Johnston  well  remarks  that  "  they  fasten  the  idea  of  allegiance  to  a 
State,  and  that  carried  into  secession  the  multitude  who  disliked  se- 
cession but  dreaded  to  commit  treason  against  the  State." 

Other  provisions  of  the  Constitution  in  relation  to  treason  are  dis- 
cussed in  connection  with  other  subjects,  as  the  subject  of  impeach- 
ment. 

Note. — "No  attainder  of  treason  shall  work  corruption  of  blood  or  for- 
feiture except  during  the  life  of  the  person  attainted."  "This  limitation  is 
understood  by  some  to  confine  the  corrupting  and  the  forfeiting  so  as  to 
require  those  acts  to  be  done  only  while  the  traitor  is  alive;  but  it  is  generally 
understood  to  restrict  the  forfeiture  in  amount— to  limit  it  to  the  life  estate 
of  the  traitor — not  affecting  the  title  in  fee.  The  courts  seem  to  hold  the  latter 
view." — Waples,  Proceedings  in  Rem,  Chicago,  1882,  346.  This  author,  how- 
ever, contends  that  the  first  view  is  the  correct  one,  or  thai  the  limitation 
is  intended  to  prohibit  what  he  calls  "post-mortem  forfeiting  for  treason,"  or 
the  legal  working  of  forfeiting  after  the  traitor's  death.  The  Supreme  Court 
decided  in  Bigelow*  i'.  Forrest,  9  Wall.  339  that  the  act  of  July  17,  1862,  and 
the  joint  resolution  of  the  same  date,  must  be  construed  together;  also  that 
under  this  legislation  all  that  could  be  sold  was  the  right  to  the  property 
seized,  terminating  with  the  life  of  the  person  for  whose  offense  it  had  been 
seized.  In  Miller  v.  United  States,  1 1  Wall.  269,  the  court  held  that  the 
confiscation  acts  of  August  6,  1861,  and  July  17,  1862,  were  constitutional, 
and  that,  excepting  the  first  four  sections  of  the  latter  act,  they  were  an 
exercise  of  the  war  powers  of  the  government,  not  an  exercise  of  its  sov- 
ereignty or  municipal  power,  and  that,  consequently,  they  were  not  in  con- 
flict with  Articles  V.  and  VI.  of  Amendments  to  the  Constitution.  The  court 
did  not  say,  however,  as  it  was  not  called  upon  to  say,  in  either  of  these 
cases,  whether  the  first  or  the  second  view  of  the  clause,  on  its  merits,  is  the 
true  one;  the  law  and  the  resolution  were  agreeable  to  the  second  view  and 
were  constitutional,  without  reference  to  the  question  of  whether  Congress 
could  have  gone  further  or  not. 


CHAPTER  XXXIX. 

CONSTITUTIONAL  LAW :  THE  JUDICIARY. 

Article  III. 

References. 

Coxe,  Judicial  Powers  and  Unconstitutional  Legislation;  Davis, 
Appendix  to  the  Reports  of  the  Decisions  of  the  Supreme  Court  of 
the  United  States  from  September  24,  1789,  to  the  end  of  the  October 
term  1888  (United  States  Reports,  No.  131 ;  an  important  series  of 
cases,  decisions,  and  documents  by  the  Reporter  to  the  Supreme 
Court)  ;  Miller,  The  Constitution  of  the  U.  S.,  Chaps.  VII.-VIII. ; 
Bryce,  The  American  Commonwealth,  Chaps.  XXII.-XXIV.  (Chap- 
ter XXIII.  is  an  admirable  statement  of  the  way  in  which  American 
courts  were  led  to  deliver  constitutional  decisions,  and  to  set  laws 
enacted  by  State  legislatures  and  by  Congress  aside  as  null  and  void 
being  in  conflict  with  constitutions,  State  or  National). 

570.  The  American  Government  Constitutional. — The 
grand  features  of  the  American  Government  are  deUne- 
ated  in  written  constitutions.  These  constitutions  are  the 
paramount  law, —  the  Constitution  of  the  United  States  of 
the  whole  country,  and  the  constitutions  of  the  several 
States  of  those  States,  save  in  so  far  as  they  are  limited  by 
the  Constitution,  laws,  and  treaties  of  the  United  States. 
All  laws,  National  and  State,  are  enacted  with  reference  to 
these  constitutions.  Accordingly,  what  is  called  constitu- 
tional law,  if  it  did  not  originate  in  the  United  States,  has 
here  reached  its  fullest  development,  and  forms  the  peculiar 
feature  of  our  jurisprudence.  A  constitutional  objection  to 
a  measure  in  the  United  States  is,  that  the  measure  conflicts 
with  the  paramount  law;  a  constitutional  objection  to  a 
measure  in  England  amounts  only  to  this, —  the  measure  is 
a  departure  from  the  way  in  which  things  have  heretofore 
been  done. 

(318) 


CONSTITUTIONAL  LAW:  THE  JUDICIARY.         319 

571.  Constitutional  Decisions. — The  supremacy  of  the 
Constitution  over  all  laws,  State  and  National,  opens  to 
the  federal  courts  a  field  unknown  to  the  courts  of  the  Old 
World.  They  decide  constitutional  cases.  The  Supreme 
Court  is  called  upon  to  decide  cases  involving  the  question 
whether  a  law  of  Congress  is  in  conformity  with  the  Con- 
stitution, and  also  cases  calling  in  question  the  conforma- 
bility  of  State  laws  to  the  Constitution,  laws,  and  treaties 
of  the  United  States.  Once  it  was  denied  that  the  court 
had  such  powers,  but  it  has  asserted  them,  and  the  assertion 
has  been  sustained  by  the  nation.^  The  State  courts  also 
pass  upon  the  conformability  of  State  legislation  to  the 
State  constitutions. 

572.  Meaning  of  Unconstitutional. — Judge  Cooley 
states  the  meaning  of  the  word  unconstitutional  as  follows: 
"  When  a  statute  is  adjudged  to  be  unconstitutional,  it  is 
as  if  it  had  nev^r  been.  Rights  cannot  be  built  up  under  it ; 
contracts  which  depend  upon  it  for  their  consideration  are 
void;  it  constitutes  a  protection  to  no  one  who  has  acted 
under  it,  and  no  one  can  be  punished  for  having  refused 
obedience  to  it  before  the  decision  was  made.  And  what  is 
true  of  an  act  void  in  toto,  is  true  also  as  to  any  part  of  an 
act  which  is  found  to  be  unconstitutional,  and  which,  conse- 
quently, is  to  be  regarded  as  having  never,  at  any  time,  been 
possessed  of  any  legal  force."  ^ 

573.  Exercise  of  the  Power. — Obviously,  to  declare 
laws  of  Congress  null  and  void  is  a  responsible  duty.  The 
three  branches  of  the  government  are  of  equal  rank  and 
dignity;  each  one  is  supreme  in  its  own  sphere,  and  inva- 
sions of  the  sphere  of  one  by  the  others  would  soon  destroy 
their  harmonious  working.  This  responsibility  the  Su- 
preme Court  has  always  felt.  "  It  is  an  axiom  of  our  juris- 
prudence," said  Mr.  Justice  Swayne  in  1866,  "  that  an  act 
of  Congress  is  not  to  be  pronounced  unconstitutional  unless 

'  Marbury  v.  Madison,  i  Cranch  137,  and  Cohens  f.  Virginia,  6  Wheaton 
4". 

*  Constitutional  Limitations,  p.  222. 


320  THE  AMERICAN  GOVERNMENT. 

the  defect  of  power  to  pass  it  is  so  clear  as  to  admit  of  no 
doubt.  Every  doubt  is  to  be  resolved  in  favor  of  the  valid- 
ity of  the  law.  Since  the  organization  of  the  Supreme 
Court  but  three  acts  of  Congress  have  been  pronounced  by 
that  body  void  or  unconstitutional."  ^ 

574.  A  Case  Must  Arise. — The  Supreme  Court  cannot 
express  its  opinion  as  to  the  constitutionality  of  a  law  until 
a  case  arises  fairly  involving  that  question.  For  instance, 
in  more  than  one  hundred  years  it  has  not  had  an  opportu- 
nity to  declare  the  meaning  of  the  phrase  in  relation  to  attain- 
der, "  except  during  the  life  of  the  person  attainted." 
Should  Congress  enact  a  law  for  the  punishment  of  treason 
making  forfeiture  of  lands  perpetual,  and  should  a  case  arise 
under  this  law,  then  the  court  could  give  the  phrase  an  au- 
thoritative interpretation.  In  1857  it  pronounced  the  Mis- 
souri Compromise  unconstitutional,  although  this  had  been 
on  the  statute-book  since  1820.  , 

575.  Political  Power  of  the  Judiciary. — The  theory  of  the  Con- 
stitution is  that  the  three  departments  of  the  government  are  coor- 
dinate, each  one  being  independent  of  the  other  two.  Outside  of  the 
impeaching  power,  no  department  is  amenable  to  either  of  the 
others.  No  power  has  been  given  to  the  courts  to  construe  the  Con- 
stitution for  Congress  or  the  President :  each  department  must  con- 
strue the  instrument  for  itself.  At  the  same  time,  judicial  construc- 
tions of  the  laws  and  the  Constitution  directly  affect  the  two  political 
departments,  as  will  be  explained  below. 

1.  The  ordinary  mode  of  enforcing  the  laws  is  by  means  of  the 
courts;  the  courts  reach  men  through  their  decrees  and  judgments; 
and  the  question  whether  they  will  withhold  or  grant  these,  makes 
the  judges  the  interpreters  of  the  law.  If  the  court  of  final  re- 
sort thinks  a  law  unconstitutional,  it  will  not  enforce  that  law.  Con- 
gress could  reenact  a  law  thus  declared  null  and  void,  but  the  court 
would  again  refuse  to  enforce  it.  Nor  would  the  government  be  apt 
to  bring  a  second  suit  to  enforce  a  law  once  pronounced  null  and 
void.  This  is  a  practical  restraint  upon  both  the  legislature  and  the 
executive. 

2.  Congress  and  the  executive  naturally  entertain  great  respect 
for  the  constitutional  decisions  of  the   Supreme  Court.    These  de- 

»  U.  S.  V.  Rhodes,   i  Abbot's  U.  S.  Reports,  52. 


CONSTITUTIONAL  LAW :  THE  JUDICIARY.        321 

cisions  not  only  indicate  what  legislation  the  court  will  enforce,  but 
they  are  also  the  decisions  of  men  in  independent  position  who  are 
devoted  to  the  study  of  such'  questions. 

3.  The  public  has  great  reverence  for  the  court.  Should  Con- 
gress or  the  President  come  into  collision  with  it,  the  public  confi- 
dence would  commonly  go  with  the  judges. 

Accordingly,  the  decisions  of  the  Supreme  Court  have  a  far-reach- 
ing significance.  At  the  same  time,  it  cannot  always  enforce  its 
decrees.  Its  executive  arm  is  the  marshal ;  if  this  officer  is  not  able 
to  give  them  eflFect,  he  must  call  upon  the  President  for  aid,  and 
if  the  executive  fails  in  such  a  case,  the  court  is  powerless.  Neither 
have  the  judges  any  power  to  enforce  their  decrees  against  the 
executive.  Thus,  in  1861,  Chief-Justice  Taney  issued  a  writ  of 
habeas  corpus  in  the  interest  of  a  military  prisoner  at  Baltimore; 
but  President  Lincoln  refused  obedience  to  the  writ,  and  it  fell  power- 
less to  the  ground.  States  have  also  refused  to  obey  the  decisions 
of  the  court. 

576.  The  Courts  and  the  Development  of  the  Constitution. — 
The  national  courts  have  played  a  great  part  in  that  development  of 
the  Constitution  which  has  been  dealt  with  in  Chapter  XIII.  Mr. 
Bryce  says  this  development  has  been  effected  in  three  ways. 

"  It  has  been  changed  by  amendment."  "  It  has  been  developed 
by  interpretation,  that  is,  by  the  unfolding  of  the  meaning  implicitly 
contained  in  its  necessarily  brief  terms,  or  by  the  extension  of  its 
provisions  to  cases  which  they  do  not  directly  contemplate,  but  which 
their  general  spirit  must  be  deemed  to  cover."  "  It  has  been  devel- 
oped by  usage,  that  is,  by  the  establishment  of  rules  not  inconsistent 
with  its  express  provisions,  but  giving  them  a  character,  effect,  and 
direction  which  they  would  not  have  if  they  stood  alone,  and  by 
which  their  working  is  materially  modified."  Under  interpretation 
he  includes  construction.  "  The  process  of  development,"  he  says, 
"  shows  no  signs  of  stopping ;  nor  can  it,  for  the  new  conditions  of 
economics  and  politics  bring  up  new  problems  for  solution.  But  the 
most  important  work  was  that  done  during  the  first  half  century, 
and  especially  by  Chief-Justice  Marshall  during  his  long  tenure  of 
the  presidency  of  the  Supreme  Court  (1801-1835).  It  is  scarcely  an 
exaggeration  to  call  him,  as  an  eminent  American  jurist  has  done, 
'  a  second  maker  of  the  Constitution.'  "  * 

577.  The  National  Judiciary. — No  department  of  the  govern- 
ment has  more  fully  met  the  expectations  of  its  authors  than  the 
judiciary.  No  department  has  commanded  more  confidence  at  home 
or  more  applause  abroad.     Its   influence  on   the  political  and  legal 

'  See  the  admirable  chaitcrs,   XXXT.-XXXV. 

AM.  GOV. — 21 


322  THE  AMERICAN  GOVERNMENT. 

development  of  the  country  has  been  very  great.  To  quote  Pro- 
fessor Johnston :  "  Unquestionably  the  most  important  creation  of 
the  Constitution  was  the  Federal  Judiciary.  It  will  be  seen  that  the 
only  guaranty  for  the  observance  of  the  Articles  of  Confederation 
was  the  naked  promise  of  the  States.  This  had  been  found  to  be 
utterly  worthless.  The  creation  of  a  system  of  United  States  courts, 
extending  throughout  the  States,  and  empowered  to  define  the  boun- 
daries of  Federal  authority,  and  to  enforce  its  decisions  by  Federal 
power,  supplied  the  element  needed  to  bring  order  out  of  chaos. 
Without  it  the  Constitution  might  easily  have  proved  a  more  dis- 
heartening and  complete  failure  than  the  Articles  of  Confedera- 
tion."» 

Note. — The  opinion  commonly  entertained  hitherto  is  that  the  authority  of 
our  courts  to  declare  laws  unconstitutional,  and  so  null  and  void,  is  purely  of 
an  inferential  character.  Those  who  have  asserted  most  strongly  that  the 
Supreme  Court  of  the  United  States  has  such  power,  have  held  that  it  is  based 
upon  implication  and  inference,  and  not  upon  the  express  meaning  of  the 
text,  or  any  part  of  the  text,  of  the  Constitution,  Mr.  Brinton  Coxe,  in  the 
learned  work  named  above,  has  undertaken  "to  show  that  the  Constitution  of 
the  United  States  contains  express  texts  providing  for  judicial  competency 
to  decide  questioned  legislation  constitutional  or  unconstitutional  and  to  hold 
it  valid  or  void  accordingly."  In  examining  this  subject,  he  investigates  "  the 
history  of  the  relation  of  judicial  power  to  unconstitutional  legislation  in  cer- 
tain of  the  States  before  and  during  the  Confederation,"  and  seeks  "to  show 
that  the  judicial  competency  under  discussion  is  an  American  institution  older 
than  the  Constitution  of  the  United  States"  pages  (i,  2).  It  is  well  known 
to  students  that  State  courts  began,  almost  as  soon  as  the  first  State  constitu- 
tions were  ordained,  to  deliver  decisions  in  which  they  set  aside  State  legisla- 
tion as  in  conflict  with  those  instruments.  A  New  Jersey  case  bears  the  date 
1780,  a  Virginia  case  1782,  a  New  York  case  1784,  and  a  Rhode  Island  case 
1786.  The  constitutional  decisions  of  the  National  Supreme  Court  appear  to 
have  a  still  earlier  prototype.  Mr.  Bryce  remarks:  "Questions  sometimes 
arose  in  Colonial  days  whether  the  statutes  made  by  these  [Colonial]  Assem- 
blies were  in  excess  of  the  powers  conferred  by  the  charter;  and  if  the  statutes 
were  found  to  be  in  excess,  they  were  held  invalid  by  the  courts,  that  is  to 
say,  in  the  first  instance,  by  the  Colonial  courts,  or,  if  the  matter  was  carried 
to  England,  by  the  Privy  Council."  He  states  that  "the  same  thing  happens 
even  now  as  regards  the  British  Colonies"  (Vol  I.,  pp.  248,  249,  text  and 
note).  Judge  Swayne  is  quoted  above  to  the  effect  that,  down  to  1866,  only 
three  laws  enacted  by  Congress  had  been  declared  unconstitutional.  Mr. 
Davis  (see  title  above,  pp.  ccxxxv,  et  seq.)  gives  the  titles  of  20  decisions 
rendered  by  the  court  declaring  United  States  statutes  repugnant  to  the  Con- 
stitution, and  171  decisions  declaring  State  statutes  so  repugnant.  Mr.  Coxe 
subjects  the  first  of  these  lists  to  criticism,  and  points  out  that  it  does  not 
contain  the  famous  Dred  Scott  decision  (19  Howard  393).  It  is  perhaps  in 
some  cases  a  difficult  matter  to  determine  whether  a  decision  nullifies  an  act 
of  Congress  or  not. 

'  History  of  American  Politics,  pp.   11,  12. 


CHAPTER  XL. 

THE  RIGHTS  AND  DUTIES   OF  STATES. 

Article  IV. 

Section  i. —  Full  faith  and  credit  shall  be  given  in  each  State  to 
the  public  acts,  records,  and  judicial  proceedings  of  every  other  State. 
And  the  Congress  may  by  general  laws  prescribe  the  manner  in 
which  such  acts,  records,  and  proceedings  shall  be  proved,  and  the 
effect  thereof. 

578.  Public  Acts,  Records,  etc. — The  public  acts  re- 
ferred to  are  acts  of  the  legislatures ;  the  records  are  the 
records  of  wills,  deeds,  and  legislative  journals ;  the  judicial 
proceedings  are  the  orders  and  judgments  of  courts.  For 
a  State  to  give  full  faith  and  credit  to  the  acts  and  records 
of  another  State,  is  to  give  to  them  the  same  credit  that 
the  State  to  which  they  belong  gives  them.  This  provi- 
sion is  obviously  essential  to  the  domestic  peace  and  order 
of  a  federal  union  like  the  United  States.  Even  the  Ar- 
ticles of  Confederation  contained  the  same  provision  in 
somewhat  different  words. 

Section  2,  Clause  i. —  The  citizens  of  each  State  shall  be  entitled 
to  all  privileges  and  immunities  of  citizens  in  the  several  States. 

579.  Privileges  and  Immunities. — Whatever  privileges 
and  immunities  any  State  accords  to  its  own  citizens,  it 
must  accord  to  the  citizens  of  other  States  who  may  hap- 
pen to  reside  in  it  or  visit  it.  A  citizen  of  one  State  go- 
ing into  another  cannot  claim  the  privileges  and  immuni- 
ties that  he  has  enjoyed,  unless  they  are  also  accorded  by 
the  State  into  which  he  goes  to  its  own  citizens.  Inability 
to  read  is  a  bar  to  voting  in  Massachusetts  and  Connecticut, 
and  an  illiterate  citizen  moving  into  either  of  those  States 
from  Rhode  Island  or  Vermont  cannot  claim  the  right  to  vote 

(323) 


324  I'HE  AiMERlCAN  GOVERNMENT. 

because. he  has  hitherto  enjoyed  that  right.  Still,  civil  and 
political  rights  are  nearly  the  same  in  all  the  States.  This 
provision  was  also  contained  in  the  Articles  of  Confedera- 
tion, and  is  obviously  necessary  in  a  federal  republic. 

580.  A  Citizen  Defined. — Previous  to  1868  neither  the 
national  Constitution  nor  the  national  laws  contained  a  defi- 
nition of  a  citizen.  The  States  made  their  own  definitions, 
and  there  was  more  or  less  contrariety.  Slaves  were  never 
citizens  in  any  State;  and  Chief-Justice  Taney,  in  the  Dred 
Scott  decision,  denied  that  free  negroes  were  ever  citizens 
"  in  the  sense  of  the  Constitution."  The  fact  is,  however, 
that  they  were  citizens,  and  even  voted  on  the  same  terms 
as  white  citizens,  in  several  States,  when  the  Constitution 
was  framed  and  for  some  time  afterwards.  Amendment 
XIV.  contains  this  definition  of  citizenship :  "  All  persons 
born  or  naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States  and 
of  the  State  wherein  they  reside."  A  citizen  of  the 
United  States  is  not,  however,  necessarily  a  citizen  of  any 
State ;  he  may  reside  in  a  Territory  or  in  the  District  of 
Columbia. 

Section  2,  Clause  2. — A  person  charged  in  any  State  with  treason, 
felony,  or  other  crime,  who  shall  flee  from  justice,  and  be  found  in 
another  State,  shall,  on  demand  of  the  executive  authority  of  the 
State  from  which  he  fled,  be  delivered  up  to  be  removed  to  the  State 
having  jurisdiction  of  the  crime. 

581.  Fugitives  from  Justice. —  The  national  authority 
embraces  all  the  States,  and  it  can,  by  its  own  officers, 
arrest  offenders  against  its  laws  anywhere  within  the  na- 
tional boundaries.  The  treason  of  this  clause  is  there- 
fore treason  against  a  State.  A  felony  is  a  crime  punish- 
able by  death  or  imprisonment.  The  jurisdiction  of  a  State 
is  limited  by  its  own  boundaries ;  a  State  can  punish  only 
offenses  committed  against  its  own  laws ;  criminals  often 
escape  from  one  State  into  another ;  while  the  United  States, 
save  in  cases  of  domestic  violence,  have  nothing  to  do  with 
enforcing  State  laws :  hence  there  must  be  such  a  provision 


THE  RIGHTS  AND  DUTIES  OF  STATES.  325 

as  this  if  criminals  are  to  be  punished  and  society  pro- 
tected. It  is  copied  from  the  Articles  of  Confederation 
almost  word  for  word. 

The  surrender  by  one  nation  to  another  of  a  person  charged  with 
crime  is  known  as  extradition.  This  is  not  a  right  under  the  law 
of  nations,  but  is  commonly  provided  for  between  nations  by  treaty 
stipulations.  The  surrender  of  a  criminal  by  one  State  to  another 
under  our  system  is  also  called  extradition. 

582.  Surrendering  Fugitives  from  Justice. — The  Con- 
stitution says  the  demand  for  a  fugitive  from  justice  shall  be 
made  by  the  executive  of  the  State  from  which  he  escapes, 
but  does  not  say  who  shall  make  the  surrender.  There  was 
some  friction  on  this  point  until,  in  1793,  Congress  legislated 
on  the  subject. 

The  procedure  now  is  for  the  government  making  a  requisition  for 
a  criminal  to  address  it  to  the  governor  of  the  State  to  which  the 
criminal  has  fled,  distinctly  stating  the  crime  charged.  The  fugitive 
may  be  arrested  and  held  in  custody  before  the  requisition  is  received, 
or  made ;  but  if  not,  then  it  becomes  the  duty  of  the  governor  receiv- 
ing it  to  order  his  immediate  arrest,  and  his  delivery  to  the  agent  of 
the  governor  from  whom  the  demand  comes.  The  fugitive  is  then 
taken  back  to  the  State  from  which  he  fled  for  trial.  The  governor 
on  whom  such  a  demand  is  made  has  no  right  to  go  behind  it  to 
inquire  into  the  merits  of  the  case,  but  should  obey  the  call ;  it 
makes  no  difference  whether  the  offense  charged  be  or  be  not  a  crime 
in  the  State  where  the  criminal  is  found ;  still  this  rule  is  not  always 
followed. 

Section  2,  Clause  3. —  No  person  held  to  service  or  labor  in  one 
State,  under  the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged  from  such 
service  or  labor,  but  shall  be  delivered  up  on  claim  of  the  party  to 
whom  such  service  or  labor  may  be  due. 

583.  Fugitives  from  Service. — The  States  authorizing 
slavery  in  1787  could  provide  for  the  capture  and  surren- 
der of  all  fugitive  slaves  found  within  their  own  borders, 
but  not  for  the  capture  of  those  fleeing  beyond  their  bor- 
ders. Hence  the  introduction  of  this  clause  into  the  Con- 
stitution as  a  part  of  the  third  compromise.  It  applied  as 
much  to  apprentices,  or  persons  bound  to  service  for  a  num- 


326  THE  AMERICAN  GOVERNMENT. 

ber  of  years,  as  to  slaves,  but  it  was  inserted  in  the  interest 
of  slaveholders. 

The  clause  in  relation  to  fugitives  from  service  is  vaguer  and 
more  general  than  that  in  relation  to  fugitives  from  justice.  It 
does  not  say  how  or  by  whom  the  capture  or  surrender  shall  be 
made.  In  1793  Congress  enacted  a  law  for  carrying  the  clause  into 
effect,  and  in  1850  it  enacted  the  law  known  as  the  Fugitive  Slave 
Law,  which  was  much  more  rigorous  and  efficient  than  the  previous 
one.  This  law  was  one  of  the  immediate  causes  that  led  to  the  elec- 
tion of  President  Lincoln  to  the  Civil  War,  the  Emancipation  Proc- 
lamation, and  the  Thirteenth  Amendment.  Congress  repealed  the  law 
of  1850  and  the  slave  sections  of  the  law  of  1793  in  1864. 


CHAPTER  XLI. 

NEW  STATES:  THE  TERRITORIAL  SYSTEM. 

Article  IV. 

References. 

Hinsdale,  The  Old  Northwest  (the  author  shows  how  the  Thir- 
teen Colonies  were  constituted  by  the  royal  charters,  Chaps.  VI.-VII. ; 
defines  the  Northwestern  land  claims,  XL,  and  gives  in  extenso,  XII., 
XIII.,  the  history  of  the  cessions)  ;  Fiske,  The  Critical  Period  of 
American  History  (Chap.  V.  deals  particularly  with  the  political 
bearings  of  the  Western  land  question,  and  especially  as  a  factor  in 
the  formation  of  the  Constitution)  ;  Adams,  Maryland's  InAuence  on 
Western  Land  Cessions  to  the  United  States  (this  monograph  deals 
particularly  with  the  subject  as  related  to  the  Articles  of  Confed- 
eration) ;  Bancroft,  Vol.  VI.,  p.  277  et  seq. 

Section  3,  Clause  i. —  New  States  may  be  admitted  by  the  Con- 
gress into  this  Union ;  but  no  new  State  shall  be  formed  or  erected 
within  the  jurisdiction  of  any  other  State,  nor  any  State  be  formed 
by  the  junction  of  two  or  more  States,  or  parts  of  States,  without  the 
consent  of  the  legislatures  of  the  States  concerned  as  well  as  of  the 
Congress. 

Section  3,  Clause  2. — The  Congress  shall  have  power  to  dispose 
of  and  make  all  needful  rules  and  regulations  respecting  the  ter- 
ritory or  other  property  belonging  to  the  United  States ;  and  nothing 
in  this  Constitution  shall  be  so  construed  as  to  prejudice  any  claims 
of  the  United  States,  or  of  any  particular  State. 

584.  Western  Land  Claims. — At  its  formation,  the 
American  Union  and  the  thirteen  States 'were  coextensive: 
there  was  no  public  domain.  There  were  indeed  large 
bodies  of  unoccupied  lands  on  the  Atlantic  slope,  and  the 
Lake  basin  and  the  Mississippi  valley  were  wildernesses, 
but  these  waste  lands  were  all  claimed  by  certain  of  the 
States  as  their  individual  possessions.  The  case  stood 
thus:  the  boundaries  of  New   Hampshire,  Rhode  Island, 

(327) 


328  THE  AMERICAN  GOVERNMENT. 

New  Jersey,  Pennsylvania,  Delaware,  and  Maryland  had 
been  fixed  much  as  they  are  at  present  while  they  were 
still  colonies ;  the  chartered  limits  of  Massachusetts,  Con- 
necticut, Virginia,  North  and  South  Carolina,  and  Georgia, 
which  had  originally  extended  to  the  South  Sea,  had  been 
cut  short  at  the  Mississippi  River  by  the  treaty  of  1763 ; 
New  York  claimed  that  she  had  acquired  a  vast  Western 
domain  by  way  of  her  connections  with  the  Iroquois  tribes. 
The  result  was  that  while  six  States  (save  alone  Pennsyl- 
vania, which  extended  five  degrees  of  longitude  westward 
from  the  Delaware)  were  shut  up  to  the  seaboard,  the  other 
seven  States  collectively  laid  claim  to  the  whole  West. 

585.  Western  Cessions. — The  Western  lands  soon  be- 
came the  subject  of  a  close  controversy,  which  tended  sharp- 
ly to  divide  the  States  into  two  groups.  Six  claimant  States 
pleaded  their  ancient  charters,  and  New  York  her  Iro- 
quois connections,  as  good  and  sufficient  titles  to  their 
claims.  The  six  non-claimant  States  repudiated  these 
titles  and  urged  that,  as  the  West  must  be  wrested  from  the 
common  enemy  by  the  common  effort,  it  should  belong  to 
the  common  country  or  the  Union.  Next  to  independence 
and  the  formation  of  a  government  adequate  to  the  needs 
of  the  Union,  the  land  question  was  the  most  formidable 
political  issue  of  Revolutionary  times.  Moreover,  it  derived 
much  of  its  importance  from  its  intimate  connection  with 
both  of  those  questions.  It  was  greatly  complicated  also  by 
conflicting  boundaries  and  overlapping  claims.  A  happy 
escape  from  the  controversy  was  finally  found  in  the  surren- 
der to  the  United  States  by  the  seven  States  of  lands  to 
which  they  laid  claim,  on  the  pledge  given  by  Congress 
in  1780  that  all  lands  so  ceded  should  be  disposed  of  for 
the  common  benefit  of  the  United  States  and  be  settled  and 
formed  into  distinct  republican  States,  to  be  admitted  to  the 
Union  on  an  equal  footing  with  the  old  States.  New  York 
ceded  in  1781,  Virginia  in  1784,  Massachusetts  in  1785,  Con- 
necticut in  1786.  The  Southern  cessions  were  delayed; 
South  Carolina's  until  1789,  North  Carolina's  until   1790, 


NEW  STATES:  THE  TERRITORIAL  SYSTEM.       329 

and  Georgia's  until  1802.  The  first  four  cessions  all  lay 
northwest  of  the  Ohio  River,  and  they  constituted  the  origi- 
nal public  domain. 

586.  Division  of  Old  States. — But  this  was  not  all. 
Vermont,  which  was  claimed  by  both  New  Hampshire  and 
New  York,  and  partly  by  Massachusetts,  had  been  clamor- 
ing for  admission  to  the  Union  as  a  State  since  1777.  Ken- 
tucky already  had  a  considerable  population,  among  which 
there  was  a  strong  and  constantly  growing  sentiment  in 
favor  of  separation  from  Virginia  and  the  assumption  of  the 
position  of  a  new  and  independent  State;  and  Maine,  then 
a  part  of  Massachusetts,  had  all  the  natural  requisites  for 
a  separate  State.  The  same  may  be  said  of  Tennessee, 
which  until  1790  was  part  of  North  Carolina. 

587.  Admission  of  New  States. — There  was  therefore 
abundant  territory  belonging  to  the  Union  in  1787  out  of 
which  to  form  new  States,  and  still  more  in  prospect.  The 
people  of  the  old  States  had  no  thought  of  keeping  this 
territory  permanently  in  an  inferior  political  position,  but 
rather  proposed  to  have  it  formed  into  new  States  as 
rapidly  as  its  settlement  would  justify.  Furthermore,  the 
Vermont  and  Kentucky  questions  called  for  immediate  set- 
tlement. Out  of  this  state  of  facts  grew  the  two  clauses  of 
the  Constitution  quoted  above,  which  provide  for  the  ad- 
mission of  new  States  and  for  the  government  of  the  nation- 
al territory.  But  as  controversies  would  arise,  and  in  fact 
then  existed,  relative  to  the  division  of  States,  the  provision 
was  wisely  inserted  in  regard  to  obtaining  the  consent  of  all 
the  legislatures  concerned  as  well  as  of  Congress.  Still 
further,  the  pending  controversy  as  to  the  Southern  cessions 
caused  the  insertion  of  the  provision  that  nothing  in  the  Con- 
stitution should  be  so  construed  as  to  prejudice  any  claim 
of  the  United  States  or  of  any  particular  State.  Once 
more,  settlements  within  the  national  domain  were  then 
beginning,  and  rules  and  regulations  concerning  lands  and 
other  matters  were  plainly  needed,  the  making  of  which 
would  naturally  fall  to  Congress. 


330  THE  AMERICAN  GOVERNMENT. 

588.    Territorial  Growth. — These  are  the  various  acquisitions  of 

territory  by  the  United  States : ' 

1.  Louisiana,  purchased  of  France  in  1803,  for  $15,000,000,  em- 
braced the  western  half  of  the  Mississippi  valley  and  extended  across 
the  lower  Mississippi  River. 

2.  Florida,  purchased  of  Spain  in  1819,  for  $5,000,000,  included 
the  peninsula  of  that  name,  and  a  narrow  strip  of  territory  running 
westward  along  the  Gulf  of  Mexico  to  Louisiana. 

3.  Texas  originally  claimed  within  its  boundaries,  besides  the 
present  State,  so  much  of  the  Territory  of  New  Mexico  as  lies  east 
of  the  Rio  Grande.  It  was  admitted  to  the  Union  in  1845  by  a  joint 
resolution  of  Congress,  having  been  previously  a  separate  nation. 

4.  Oregon  included  the  territory  lying  between  parallels  42°  and 
49°  north  latitude  west  of  the  Rocky  Mountains.  The  title  to  this 
acquisition  is  discovery  and  occupation,  and  treaties  with  Spain,  Rus- 
sia, and  England,  bearing  the  dates  1819,  1825,  and  1846. 

5.  The  first  Mexican  annexation  embraced  the  country  now 
owned  by  the  United  States  south  of  parallel  42°,  and  west  of  the 
Rio  Grande,  except  the  second  Mexican  annexation.  This  was  partly 
a  conquest  and  partly  a  purchase  from  Mexico  in  1848,  the  considera- 
tion being  $15,000,000. 

6.  The  second  Mexican  annexation,  a  strip  of  southern  Arizona 
and  New  Mexico,  sometimes  called  the  Gadsden  Purchase,  was 
secured  in  1853,  for  $10,000,000. 

7.  Alaska  was  purchased  of  Russia  in  1867,  for  $7,200,000. 

8.  The  Hawaiian  Islands  were  annexed  by  a  joint  resolution  of 
Congress  approved  July  7,  1898. 

9.  By  the  treaty  of  December  10,  1898,  Spain  ceded  to  the  United 
States  the  island  of  Porto  Rico  and  other  islands  in  the  West  Indies, 
Guam  in  the  Ladrones,  and  the  Philippine  Islands.  At  the  same  time 
she  relinquished  all  claim  of  sovereignty  over  and  title  to  Cuba.  The 
United  States  paid  Spain,  according  to  the  terms  of  the  treaty, 
$20,000,000. 

10.  Part  of  the  Samoan  Islands,  including  Tutuila,  were  acquired 
by  treaty  with  England  and  Germany,  in  1900. 

589.  The  Territory  of  the  United  States.  —The  terri- 
tory of  the  United  States  is  that  part  of  the  national  domin- 
ion or  territory  which  has  not  been  formed  into  States.  It  is 
divided  into  organized  and  unorganized  territories.  The 
first  are  described  in  succeeding  paragraphs ;  the  second  are 
directly   subject  to  the  laws  of   Congress.     New   Mexico, 

^  See  Hinsdale,  How  to  Study  and   Teach  History,  Chap.   XX. 


NEW  STATES :  THE  TERRTIORIAL  SYSTEM.       331 

1850;  Arizona,  1863;  Oklahoma,  1890,  and  Hawaii,  1900, 
belong  to  the  one  class ;  Alaska  and  Indian  Territory  belong 
to  the  other.     For  the  "  dependencies,"  see  597. 

590.  Ordinance  of  1787. — Preparations  for  settling  the 
West  and  forming  new  States  were  already  in  progress  in 
1787.  In  1784  Congress  had  adopted  a  Plan  for  the  tem- 
porary Government  of  the  Western  Territory.  But  this 
proved  inoperative,  and  was  repealed  three  years  later.  In 
1785  Congress  adopted  an  Ordinance  for  Ascertaining  the 
Mode  of  Disposing  of  Lands  in  the  Western  Territory,  as 
far  as  they  had  been  ceded  by  the  States  and  by  the  Indian 
tribes.  And  July  13,  1787,  it  adopted  the  Ordinance  for 
the  Government  of  the  Territory  of  the  United  States 
Northwest  of  the  River  Ohio.  This  celebrated  ordinance, 
which  was  a  sort  of  constitution  for  the  Old  Northwest, 
provided  a  territorial  government,  and  established  six 
articles  of  compact  between  the  United  States  and  the 
States  to  be  carved  out  of  the  Territory,  which  should  be  of 
perpetual  obligation.  The  fifth  article  of  compact  said 
there  should  be  formed  in  the  Territory  not  less  than  three 
nor  more  than  five  States,  and  defined  their  boundaries, 
which,  however,  were  in  some  particulars  subsequently 
departed  from. 

591.  The  Northwest  Territory. — At  the  same  time  that 
the  Federal  Convention  was  framing  the  Constitution,  and 
Congress  the  Ordinance  of  1787,  the  Ohio  Company  of 
Associates,  composed  mainly  of  New  England  men  who  had 
served  in  the  Revolutionary  army,  were  making  arrange- 
ments for  forming  a  settlement  in  the  Northwest.  In  fact, 
it  was  the  representation  made  to  Congress  by  this  company, 
that  it  would  buy  and  settle  a  large  tract  of  the  public 
lands,  provided  suitable  terms  were  made  and  a  suitable 
government  established,  that  immediately  led  to  the  enact- 
ing of  the  ordinance.  In  pursuance  of  this  arrangement 
a  settlement  was  made  at  Marietta,  Ohio,  in  1788,  and  the 
Territory  was  fully  organized  July  15  of  that  year.  Here 
our  Territorial   System  had   its   beginning.     At  the  basis 


332  THE  AMERICAN  GOVERNMENT. 

of  this  system  lies  a  new  and  distinct  idea.  The  Territories 
of  the  United  States  are  quite  different  from  the  colonies 
of  either  ancient  or  modern  times;  the  Territory  is  an 
inchoate  State,  and  has  been  a  powerful  factor  in  the  de- 
velopment of  the  nation. 

592.  Types  of  Territorial  Government. — The  Ordinance  of  1787 
gave  the  Northwest  Territory  a  government  that  embraced  these 
features:  (i)  There  were  a  governor  and  three  judges,first  appointed 
by  Congress,  but  later  by  the  President  and  Senate;  (2)  these  officers, 
in  addition  to  their  executive  and  judicial  duties,  were  to  frame  a  ter- 
ritorial code  by  selecting  appropriate  laws  from  the  statute  books  of 
the  States;  (3)  a  territorial  legislature  should  be  elected  as  soon  as 
the  free  male  inhabitants  reached  5,000,  consisting  of  a  house  of  rep- 
resentatives, chosen  by  the  people,  and  a  council,  appointed  by  Con- 
gress or  the  President,  from  a  list  of  candidates  nominated  by  the 
house ;  (4)  Congress  should  have  a  veto  on  all  laws,  whether  selected 
by  the  governor  and  judges  or  enacted  by  the  legislature;  (5)  the 
Territory,  on  reaching  the  population  named,  should  have  a  delegate, 
in  Congress  appointed  by  the  legislature,  with  the  right  to  speak  but 
not  to  vote.  This  ordinance  was  the  model  of  the  early  territorial 
governments. 

The  later  type  was  less  centralized  and  gave  more  power  to  the 
people.  It  consists  of  legislative,  executive,  and  judicial  branches 
fully  developed.  The  legislature  is  chosen  by  the  people ;  the  gov- 
ernor and  judges  are  appointed  by  the  President  and  Senate,  and  are 
paid  from  the  national  treasury ;  the  territorial  delegate  is  elected 
by  the  people.  The  people  are  subject  to  certain  special  laws  of  Con- 
gress, but  interests  of  a  merely  local  character  are  regulated  by  local 
laws. 

593.  Prohibition  of  Slavery  in  the  Northwest. — The  Ordinance 
of  1784,  as  originally  reported  by  a  committee  of  which  Mr.  Jefferson 
was  chairman,  contained  a  prohibition  of  slavery  in  all  the  Western 
country,  ceded  or  to  he-  ceded,  on  and  after  January  i,  1801,  but  it 
was  struck  out  of  the  bill  on  its  passage  through  Congress..  The  Or- 
dinance of  1787  revived  the  prohibition,  but  limited  it  to  the  North- 
west and  gave  it  immediate  effect.  Article  VI.  of  compacts  declares : 
"  There  shall  be  neither  slavery  nor  involuntary  servitude  in  the  said 
Territory,  otherwise  than  in  the  punishment  of  crimes  whereof  the 
party  shall  have  been  duly  convicted."  And  this  clause  was  tacitly 
reaffirmed  by  Congress  when,  in  1789,  it  adapted  the  territorial  gov- 
ernment to  the  Federal  Constitution.  This  prohibition  became  a 
precedent  when  slavery  in  the  Territories  became  an  absorbing  po- 
litical question  at  a  later  day. 


NEW  STATES :  THE  TERRITORIAL  SYSTEM.       333 

594.  Status  of  a  Territory. — The  status  of  a  territory  is 
distinctly  inferior  to  that  of  a  State.  The  people  enjoy  full 
civil  rights,  but  their  political  rights  are  limited ;  their  only 
representative  in  Congress  is  a  delegate  who  cannot  vote. 
They  have  no  share  in  electing  the  President ;  they  do  not 
choose  their  own  governor  or  judges;  they  are  wholly 
subject  to  Congress,  and  have  no  political  power  or  rights 
except  such  as  Congress  sees  fit  to  give  them ;  they  come 
into  the  Union  as  a  State  only  by  the  permission  of  Congress. 
The  objects  of  a  territorial  government  are  to  protect  the 
people  while  it  continues,  and  to  prepare  the  Territory  for 
statehood. 

595.  Requisites  for  Admission. — The  Constitution  com- 
mits the  admission  of  new  States  wholly  to  the  discre- 
tion of  Congress.  The  history  of  the  States  admitted  shows 
some  diversity  of  practice  in  minor  points.  Congress  deter- 
mines the  boundaries  of  new  States  formed  from  the  public 
domain,  fixes  the  time  and  manner  of  admission,  and  re- 
quires a  constitution  republican  in  form.  No  rule  as  to  the 
size  or  population  of  a  new  State  has  at  any  time  been  fol- 
lowed. Many  points  of  detail  are  settled  in  advance,  some 
in  the  law  organizing  the  Territory,  and  others  in  a  special 
act  called  an  Enabling  Act,  which  authorizes  the  people  to 
frame  a  constitution  and  apply  for  admission  to  the  Union. 
In  several  cases,  however,  enabling  acts  have  not  been 
passed. 

596.  New  States. — In  all  thirty-two  new  States  have  been  ad- 
mitted to  the  Union.  Of  the  forty-five  States,  twenty-five  lie  within 
the  United  States  as  constituted  by  the  treaty  of  1783  (except  that 
Alabama  and  Mississippi  project  south  of  the  original  southern  line), 
while  twenty  have  been  formed  out  of  the  several  annexations 
(except  that  Minnesota  extends  partly  to  the  east  of  the  original 
western  line). 

West  Virginia  was  admitted  in  spite  of  special  difficulties  that 
have  not  been  involved  in  any  other  case.  Before  the  Civil  War 
there  were  considerable  divergencies  of  feeling  and  interest  between 
the  two  sections  of  the  State  of  Virginia,  as  divided  by  the  Alleghany 
Mountains.  These  divergencies  culminated  at  the  beginning  of  the 
war;  the  people  on  one  side  of  the  mountains  going  with  the  South- 


334  I'HE  AMERICAN  GOVERNMENT. 

ern  Confederacy,  the  people  on  the  other  remaining  faithful  to  the 
Union.  In  April,  i86i,  a  State  convention  at  Richmond  passed  an  or- 
dinance of  secession.  In  June  following,  a  State  convention  at 
Wheeling,  consisting  mainly  of  delegates  from  the  western  part  of 
the  State,  passed  an  ordinance  declaring  that  the  State  officers  who 
had  become  secessionists  had  vacated  their  offices,  appointed  a  gov- 
ernor, and  provided  for  the  election  of  a  new  legislature.  It  also 
passed  an  ordinance  submitting  to  a  popular  vote  the  question  of 
erecting  a  new  State  to  be  called  Kanawha.  In  October  the  people 
voted  in  favor  of  the  new  State,  and  at  the  same  time  elected  dele- 
gates to  a  convention  to  frame  a  constitution.  In  April,  1862,  the 
people  adopted  the  constitution  that  the  convention  had  framed. 
But  this  did  not  suffice;  the  national  Constitution  made  the  consent 
of  the  legislature  of  Virginia,  as  well  as  of  Congress,  necessary.  So 
in  May  the  legislature  elected  in  pursuance  of  the  call  issued  by  the 
Wheeling  convention  the  year  before,  composed  of  the  representa- 
tives of  the  forty  western  counties  but  styled  the  legislature  of  Vir- 
ginia, gave  the  formal  consent  of  Virginia.,  Congress  admitted  the 
Senators  chosen  by  the  same  legislature,  and  in  December,  1862, 
passed  an  act  to  admit  the  new  State  on  the  adoption  of  a  plan  for 
the  gradual  abolition  of  slavery.  In  the  course  of  these  transactions 
the  name  Kanawha  was  dropped  and  West  Virginia  substituted. 
After  the  war,  the  legislature  of  Virginia  acknowledged  the  validity 
of  the  formation  of  the  new  State. 

597.  Government  of  Dependencies. — By  an  act  approved  April 
12,  1900,  Congress  created  a  temporary  civil  government  for  Porto 
Rico  and  the  islands  adjacent.  The  legislative  assembly  is  composed 
of  the  house  of  delegates  and  the  executive  council.  The  members 
of  the  house  of  delegates,  thirty-five  in  number,  are  elected  biennially 
by  the  qualified  voters  of  Porto  Rico.  The  members  of  the  executive 
council  are  appointed  by  the  President  by  and  with  the  advice  and 
consent  of  the  Senate,  for  the  term  of  four  years.  The  secretary, 
attorney-general,  treasurer,  auditor,  commissioner  of  the  interior, 
and  commissioner  of  education  of  Porto  Rico  are  ex  officio  mem- 
bers ;  the  five  other  members  are  appointed  primarily  as  members  of 
the  council  and  not  as  administrative  officers.  Five  of  the  total  num- 
ber must  be  native  inhabitants  of  Porto  Rico.  Besides  acting  as  a 
house  of  legislation,  this  body  is  also  an  advisory  council  to  the  gov- 
ernor. The  governor  is  appointed  in  the  same  manner  as  the  mem- 
bers of  the  council,  and  for  the  same  period.  The  judiciary  consists 
of  the  municipal  courts  existing  at  the  passage  of  the  act  and  a 
United  States  District  Court.  The  judges  of  the  municipal  district 
courts  are  appointed  by  the  governor  and  council;  the  chief  justice 
and  associate  justices  of  the  municipal  supreme  court,  as  well  as  the 


NEW  STATES:  THE  TERRITORIAL  SYSTEM.       335 

judge,  district  attorney,  and  marshal  for  the  district  of  Porto  Rico, 
by  the  President  by  and  with  the  advice  and  consent  of  the  Senate. 
The  salaries  of  all  officers,  as  well  as  the  other  expenses  of  the  gov- 
ernment, are  paid  out  of  the  revenues  of  Porto  Rico.  The  governor's 
salary  is  $8,000.  The  qualified  electors  elect  a  resident  commissioner 
to  the  United  States. 

By  an  act  approved  July  i,  1902,  Congress  provided  a  plan  for  a 
temporary  civil  government  of  the  Philippines.  These  islands,  ceded 
to  the  United  States  in  1898,  were  first  brought  under  the  control  of 
the  military,  but  later  the  President  sent  out  a  Philippine  Commis- 
sion which  by  1902  had  established  local  governments  in  many  places, 
and  had  taken  charge  of  the  general  government  there.  The  law  of 
1902  ratified  the  acts  of  this  Commission,  and  continued  its  power 
until  the  new  plan  of  government  should  be  put  in  operation.  The 
new  plan  includes  a  legislature  consisting  of  two  houses,  the  Phil- 
ippine Commission  of  eight  members  appointed  by  the  President  of 
the  United  States,  with  the  consent  of  the  Senate,  and  a  Philippine 
assembly  elected  by  the  people  of  the  Philippines.  The  executive 
branch  of  the  government  is  exercised  by  a  Civil  Governor  appointed 
by  the  President  and  Senate,  and  by  four  other  members  of  the  Phil- 
ippine Commission  acting  as  heads  of  executive  departments.  The 
legislature  has  the  choice  of  two  resident  commissioners  to  represent 
the  islands  at  Washington.  The  supreme  and  municipal  courts 
already  established  by  the  commission  were  continued  by  the  law  of 
1903,  but  the  appointment  of  judges  of  the  supreme  court  was  trans- 
ferred to  the  President  and  Senate. 

Cuba  was  not  ceded  in  1898,  but  the  United  States  were  to  "bc- 
cupy  "  the  island,  and  while  such  occupation  should  last  were  to  pro- 
tect life  and  property,  subject  to  the  obligations  imposed  by  interna- 
tional law.  This  military  government  of  Cuba  by  the  United  States 
came  to  an  end  May  20,  1902,  when  the  island  was  handed  over  to  its 
own  independent  government. 


CHAPTER  XLII. 

NATIONAL  GUARANTEES  TO  THE  STATES.- 

Article  IV. 

Section  4. —  The  United  States  shall  guarantee  to  every  State  in 
this  Union  a  republican  form  of  government,  and  shall  protect  each 
of  them  against  invasion ;  and  on  application  of  the  legislature,  br  of 
the  executive  (when  the  legislature  cannot  be  convened)  against 
domestic  violence. 

598.  The  States  Republican. — With  certain  Hmitations 
imposed  by  the  national  Constitution,  the  States  are  left 
free  to  organize  their  own  governments  in  their  own  way. 
One  of  these  limitations  is  that  their  governments  shall  be 
republican.  A  State  can  be  suffered  neither  to  set  up  a 
non-republican  government  for  itself  nor  to  continue  under 
one  imposed  by  another  power.  This  is  rendered  neces- 
sary by  the  nature  of  the  American  system ;  a  monarchical 
state  in  a  federal  republic  would  surely  be  an  anomaly. 

599.  Congress  to  Decide. — The  Constitution  does  not 
say  what  authority  shall  exercise  this  power  of  guarantee, 
or  even  define  a  republican  government.  The  guarantee 
itself  involves  the  power  to  decide  all  questions  growing 
out  of  it.  In  1841-42  there  were  in  the  State  of  Rhode 
Island  two  governments,  each  claiming  to  be  established. 
In  the  celebrated  case  of  Luther  v.  Borden,^  which  grew  out 
of  the  controversy,  the  Supreme  Court  decided  that  this 
power  resides  in  Congress.  "  And  its  decision  [that  of  Con- 
gress] is  binding  on  every  other  department  of  the  govern- 
ment, and  could  not  be  questioned  in  a  judicial  tribunal." 

600.  Invasion  and  Domestic  Violence. — Protecting  a 
State  against  invasion  and  violence  is  protecting  the  Union 
itself;  and  it  is  the  more  reasonable  that  the  nation  should 

*  HowartV  1 . 

(336) 


NATIONAL  GUARANTEES  TO  THE  STATES.       337 

furnish  the  protection  because  of  the  denial  to  the  States  of 
the  right  to  keep  ships  of  war  and  troops  in  time  of  peace. 
The  laws  make  it  the  duty  of  the  President  to  afford  this 
protection,  and  they  give  him  power  to  use  the  standing 
army  and  to  call  out  the  militia  for  this  purpose.  In  a 
case  of  invasion,  no  application  for  protection  is  necessary ; 
the  President,  as  commander  in  chief,  chooses  his  own  time 
and  mode  of  action ;  but  in  case  of  violence  the  proce- 
dure  is   very   different. 

601.  Procedure  in  Cases  of  Violence. — Domestic  vio- 
lence is  resistance  to  the  law  and  authority  of  a  State;  to 
suppress  it  is  first  the  duty  of  the  State  authorities.  The 
President  cannot  even  issue  a  proclamation  commanding 
lawbreakers  to  disperse  until  a  formal  application  has  been 
made  to  him,  unless  the  operations  of  the  national  govern- 
ment are  interfered  with. 

The  common  mode  of  proceeding  when  State  laws  are  resisted,  is 
this:  (i)  the  local  police,  as  the  sheriff  and  his  posse,  attempt  to 
maintain  order;  (2)  failing  in  the  attempt,  the  sheriff  calls  upon  the 
governor  of  the  State  for  aid;  (3)  the  governor,  if  in  his  judgment 
the  emergency  calls  for  it,  orders  out  the  State  militia ;  (4)  the  mili- 
tia failing,  the  governor,  or  the  legislature  if  in  session,  makes  an  ap- 
plication for  aid  to  the  President,  who  (5)  becomes  the  judge  of  the 
emergency.  It  is  important  to  state,  however,  that  if  the  insurrection 
in  any  way  interrupts  the  operations  of  the  national  government, 
the  President  can,  if  he  thinks  necessary,  at  once  send  the  national 
troops  or  call  out  the  militia  to  put  an  end  to  such  interruption. 

602.  Reasons  for  the  Distinction. — The  reasons  for 
making  the  distinction  between  invasion  and  violence  are 
obvious.  Invasion  is  not  only  the  more  imminent  peril, 
but  it  is  also  a  direct  challenge  of  the  national  authority. 
On  the  other  hand,  it  is  the  duty  of  any  government,  as  a 
State  government,  to  enforce  its  own  laws.  A  government 
that  cannot  ordinarily  enforce  its  own  laws  but  must  rely 
upon  another  government  to  do  so,  is  no  government  at  all. 
It  lacks  the  essential  coercive  element.  Still  more,  a  State 
would  naturally  resent  all  offers  of  unnecessary  protection 
as  an  interference  in  its  affairs :  not  to  do  so  would  be  a 

AM.  GOV. 22 


338  THE  AMERICAN  GOVERNMENT. 

confession  of  weakness.  Again,  the  frequent  employment 
of  the  national  forces  by  the  President  for  such  purposes, 
would  tend  to  centralize  power  and  perhaps  to  establish  a 
military  despotism.  Hence  the  national  government's  pow- 
er to  interfere  is  limited  by  the  requirement  of  a  formal  ap- 
plication for  protection.  The  preference  of  the  legislature 
to  the  governor  as  the  authority  to  make  the  application, 
also  arises  from  fear  of  centralized  power. 

603.  Direct  Relation  of  National  Authority  to  Domes- 
tic Violence. — Still  it  must  not  be  supposed  that  the  national 
authority,  in  striking  at  domestic  violence,  pursues  in  every 
case  the  roundabout  course  that  has  been  described.  The 
President  is  sworn  to  see  that  the  national  laws  are  faith- 
fully executed ;  and  if  public  lawlessness  in  any  way  trenches 
upon  those  laws,  if  the  operations  of  the  government  are 
in  any  way  interfered  with,  then  it  is  his  right  and  duty  to 
intervene,  provided,  in  his  judgment,  such  intervention  is 
necessary.  Ordinarily  he  will,  in  such  case,  like  the  gover- 
nor of  a  State,  look  first  to  the  civil  processes  of  the  courts ; 
these  failing,  he  will  issue  his  proclamation  commanding 
rioters  or  insurgents  to  disperse,  and  then,  if  he  deems  it 
necessary,  he  will  send  the  national  troops,  or  even  call 
out  the  militia  of  the  States,  to  maintain  the  public  peace. 
The  President  can  put  soldiers  on  the  mail  cars  to  defend 
the  mails,  although  he  cannot  put  them  on  passenger  cars 
to  defend  the  lives  of  passengers,  unless  called  upon  by 
the  State  authority.  President  Lincoln  acted  in  accord- 
ance with  this  power  in  issuing  his  proclamation  of  April 
15,  1861.  President  Cleveland  did  the  same  .in  reference 
to  the  railroad  riots  in  Chicago  in  June  and  July,  1894. 

Replying  to  Governor  Altgeld,  of  Illinois,  who  had  complained  that 
his  action  was  unwarranted,  President  Cleveland  said :  "  Federal 
troops  were  sent  to  Chicago  in  strict  accordance  with  the  Constitu- 
tion and  laws  of  the  United  States,  upon  the  demand  of  the  Post 
Office  Department  that  obstruction  of  the  mails  should  be  removed, 
and  upon  the  representation  of  the  judicial  officers  of  the  United 
States  that  processes  of  the  federal  courts  could  not  be  executed 
through  the  ordinary  means,  and  upon  abundant  proof  that  conspir- 


NATIONAL  GUARANTEES  TO  THE  STATES.       339 

acies  existed  against  commerce  between  the  States.  To  meet  these 
conditions,  which  are  clearly  within  the  province  of  federal  authority, 
the  presence  of  federal  troops  in  the  city  of  Chicago  was  deemed 
not  only  proper,  but  necessary,  and  there  has  been  no  intention  of 
thereby  interfering  with  the  plain  duty  of  the  local  authorities  to 
preserve  the  peace  of  the  city.''  A  case  involving  the  powers  of  the 
national  government  in  these  emergencies  was  carried  to  the  Supreme 
Court,  which  sustained  the  President  and  held :  ( i )  that  the  govern- 
ment of  the  United  States  has  jurisdiction  over  every  foot  of  soil 
within  its  territory,  and  acts  upon  each  citizen;  (2)  that  it  has  full 
attributes  of  sovereignty  over  interstate  commerce  and  the  trans- 
mission of  the  mails;  (3)  that  the  powers  thus  conferred  have  been 
assumed  and  put  into  practical  exercise  by  congressional  legislation ; 
(4)  that  in  the  exercise  of  these  powers  the  government  may  remove 
natural  or  artificial  obstructions  to  the  passage  of  interstate  com- 
merce or  the  carrying  of  the  mails.^ 

Note. — The  fact  that  under  our  system  of  government  the  suppression  of 
insurrection  and  domestic  violence,  or  in  other  words  the  maintenance  of 
public  order,  falls  in  the  first  instance  upon  the  State  rather  than  upon  the 
Nation,  has  led  to  some  serious  diplomatic  controversies.  Reference  may  be 
made  to  the  McLeod  case,  1840-41  (See  Lalor's  Cyclopadia,  "McLeod  Case," 
and  Curtis's  Life  of  Daniel  Webster,  Vol.  II.);  also  to  the  New  Orleans  riot 
of  1891,  which  resulted  in  the  murder  of  a  number  of  Italian  subjects,  and  to 
the  similar  Colorado  case  which  occurred  in  1895,  though  these  were  of  a  very 
different  character.  The  McLeod  case,  which  came  near  involving  us  in  war 
with  England,  led  to  the  enacting  of  a  law  by  Congress  that,  if  such  cases 
should  thenceforth  arise,  they  should  be  transferred  from  the  State  to  the 
United  States  courts  by  writ  of  habeas  corpus.  The  common  usage  of  civilized 
nations  requires  one  power  to  protect  the  lives  and  properties'  of  unoffending 
subjects  or  citizens  of  other  powers  who  are  either  temporarily  or  permanently 
within  its  territory.  Moreover,  the  national  government  enters  into  treaty 
relations  with  foreign  powers  guaranteeing  such  protection;  but  under  our 
system  the  practical  guarantee  is  furnished  by  the  States,  not  the  Nation. 
The  result  is  that  when  such  subjects  or  citizens  are  not  duly  protected  by 
the  State  authority,  and  the  power  having  jurisdiction  prefers  a  complaint  or 
makes  a  demand  for  such  protection  at  Washington,  the  National  authorities 
have  nothing  to  say,  except  that  it  is  the  duty  of  the  States  to  maintain  public 
order,  and  that  they  do  not  hold  themselves  responsible.  The  predicament 
is  an  embarrassing  one.  A  foreign  power  knows  nothing  of  the  States,  but 
does  know  the  United  States,  and  looks  to  them  for  redress.  Mr.  Blaine, 
Secretary  of  State  at  the  time  of  the  New  Orleans  riot,  made  the  families 
of  the  murdered  Italians  a  pecuniary  compensation,  taking  the  money  from 
the  contingent  fund  of  the  State  Department.  It  will  not  be  surprising  if, 
as  our  foreign  relations  become  more  complicated,  we  shall  think  it  wise  to 
adopt  some  change  in  our  policy   in  this  particular. 

*  In  re  Debs,  petitioner,  158  U.  S.  564.     See  also  64  Federal  Reporter,  724. 


CHAPTER  XLIII. 

AMENDMENTS. 

Article  V. 

The  Congress,  whenever  two  thirds  of  both  houses  shall  deem- 
it  necessary,  shall  .propose  amendments  to  this  Constitution,  or,  on 
the  application  of  the  legislatures  of  two  thirds  of  the  several 
States,  shall  call  a  convention  for  proposing  amendments,  which,  in 
either  case,  shall  be  valid  to  all  intents  and  purposes,  as  part  of 
this  Constitution,  when  ratified  by  the  legislatures  of  three  fourths 
of  the  several  States,  or  by  conventions  in  three  fourths  thereof,  as 
the  one  or  the  other  mode  of  ratification  may  be  proposed  by  the 
Congress ;  provided  that  no  amendment  which  may  be  made  prior  to 
the  year  one  thousand  eight  hundred  and  eight  shall  in  any  manner 
aflfect  the  first  and  fourth  clauses  in  the  ninth  section  of  the  first 
Article;  and  that  no  State,  without  its  consent,  shall  be  deprived  of 
its  equal  suffrage  in  the  Senate. 

604.  Need  of  the  Power. — Changes  in  the  social  con- 
ditions of  a  people,  which  are  especially  rapid  in  young 
and  growing  states,  necessitate  changes  in  the  constitu- 
tion as  well  as  in  the  laws.  At  the  same  time  frequent 
changes  are  undesirable,  as  they  tend  to  keep  the  country 
in  turmoil  and  to  beget  contempt  for  the  Constitution  itself. 
Writers  on  law  teach,  and  experience  confirms  the  teach- 
ing, that  fundamental  laws  should  be  drawn  in  broad  and 
comprehensive  terms,  and  not  be  subject  to  easy  changes. 
The  Articles  of  Confederation  were  practically  incapable  of 
amendment,  and  this  fact  hastened  the  decline  of  the  Con- 
federation, and  so  made  way  for  the  present  government. 
The  Convention  of  1787  guarded  well  both  points  of  dan- 
ger; it  is  not  easy  to  amend  the  Constitution,  but  it  is 
possible.  During  the  many  years  that  have  passed  since  it 
went  into  operation,  but  nineteen  amendments  have  been 
proposed,  and  but  fifteen  have  been  ratified. 

(340) 


AMENDMENTS.  341 

605.  Steps  in  Making  an  Amendment. — The  steps  in 
making  an  amendment  are  two  in  number,  proposing  and 
ratifying  the  amendment  —  the  same  steps  that  were  taken 
when  the  Constitution  itself  was  made.  But  the  Constitu- 
tion provides  alternative  modes  both  of  proposal  and  of 
ratification. 

1.  Congress  may  propose  amendments  by  the  vote  of 
two  thirds  of  each  house;  or,  secondly,  whenever  the  leg- 
islatures of  two  thirds  of  the  States  make  an  application, 
Congress  must  call  a  national  convention  for  that  purpose. 
The  first  is  much  the  more  direct  and  simple  mode,  and  it 
might  seem  that  it  is  sufficient ;  but  as  Congress  might  re- 
fuse to  propose  amendments  that  were  demanded  by  the 
popular  will,  the  alternative  mode  was  provided,  thus  mak- 
ing it  possible  to  propose  amendments  to  which  one  or  both 
houses  are  opposed,  and  offering  a  means  of  escape  from 
this  danger.  It  has  never  been  found  necessary  to  call  a 
convention  for  this  purpose. 

2.  An  amendment  duly  proposed  must  be  ratified  by 
the  legislatures,  or  by  the  conventions,  of  three  fourths  of 
the  States  before  it  becomes  binding.  The  Constitution 
itself  was  submitted  to  State  conventions,  because  it  was 
essential  that  the  immediate  representatives  of  the  people, 
chosen  for  that  sole  purpose,  should  pass  upon  it,  but  in  the 
case  of  amendments  that  is  not  necessary.  In  the  resolu- 
tion proposing  an  amendment,  Congress  designates  that  the 
ratifications  shall  be  made  by  the  State  legislatures. 

606.  Limitations  of  the  Power  of  Amendment. — ^The 
Convention  provided  that  no  amendment  should  be  made 
previous  to  1808  changing  the  conclusions  that  it  had 
reached  with  so  much  difficulty  in  relation  to  the  slave 
trade  and  direct  taxes.  The  other  limitation  was  far  more 
important  than  these  two.  No  State,  without  its  consent, 
can  be  deprived  of  its  equal  suffrage  in  the  Senate.  Ap- 
parently, this  limitation  puts  this  feature  of  the  national 
system  beyond  the  possibility  of  change ;  it  is  the  most  per- 
manent part  of  the  Constitution. 


342  THE  AMERICAN  GOVERNMENT. 

607.  Form  of  Amendments^ — When  the  first  amendments  that 
were  proposed  were  under  discussion  in  the  House  of  Representa- 
tives in  1789,  there  sprang  up  a  difference  of  opinion  as  to  the  form 
which  they  should  take.  It  was  first  proposed  to  insert  them  in  the 
body  of  the  Constitution  in  the  natural  places,  but  it  was  finally  de- 
cided to  add  them  as  supplements.  The  form  of  proposal  then 
adopted  has  since  been  followed,  viz. :  "  Resolved,  .  .  .  that  the 
following  Articles  be  proposed  as  amendments  to  the  Constitution, 
and  when  ratified  by  three  fourths  of  the  State  legislatures  shall 
become  valid  to  all  intents  and  purposes,  as  part  of- the  same." 


CHAPTER  XLIV. 

THE  SUPREMACY  OF  THE  UNION. 

Article  VI. 

Clause  I. —  All  debts  contracted  and  engagements  entered  into, 
before  the  adoption  of  this  Constitution,  shall  be  as  valid  against  the 
United  States  under  this  Constitution  as  under  the  Confederation. 

608.  Validity  of  the  Public  Debt. — In  the  prosecution 
of  the  war  against  England,  the  Confederation  had  con- 
tracted a  large  public  debt,  partly  domestic  and  partly  for- 
eign. While  this  debt  would  be  as  binding  in  morals  and 
in  international  law  against  the  new  government  as  against 
the  old  one,  since  the  change  in  no  way  affected  the  iden- 
tity of  the  American  people  or  the  continuity  of  the  national 
life,  at  the  same  time  a  formal  assertion  of  its  validity  in 
the  organic  law  could  not  fail  to  give  confidence,  particu- 
larly in  those  countries  where  the  foreign  debt  was  held. 

609.  Weak  Point  in  a  Federal  System. — The  weak 
point  in  every  federal  system  is  the  relation  of  the  local 
governments  to  the  general  government.  It  is  the  problem 
of  securing  at  once  both  local  freedom  and  independence,  and 
national  union  and  strength.  The  states  are  equal  in  rank, 
but  if  the  national  authority  stands  on  the  same  level, 
the  union  exists  only  in  name.  If  the  system  is  efficient  and 
permanent,  the  national  jurisdiction  must  therefore  be  para- 
mount. This  point  the  Constitution  protects  by  the  follow- 
ing clauses : 

Clause  2. —  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or 
which  shall  be  made,  under  the  authority  of  the  United  States,  shall 
be  the  supreme  law  of  the  land;  and  the  judges  in  every  State  shall 
be  bound  thereby,  anything  in  the  Constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding. 

(343) 


344  THE  AMERICAN  GOVERNMENT. 

Clause  3. —  The  Senators  and  Representatives  before  mentioned, 
and  the  members  of  the  several  State  legislatures,  and  all  executive 
and  judicial  officers,  both  of  the  United  States  and  of  fhe  several 
States,  shall  be  bound  by  oath,  or  affirmation,  to  support  this  Consti- 
tution ;  but  no  religious  test  shall  ever  be  required  as  a  qualification 
to  any  office  ox  public  trust  under  the  United  States. 

610.  The  Supreme  Law. — No  declaration  could  be  more 
distinct  and  emphatic  than  the  first  of  these  clauses,  that  the 
national  Constitution,  laws,  and  treaties  are  the  supreme 
law  of  the  land.  It  makes  this  Constitution  and  these 
laws  and  treaties  the  paramount  part  of  the  State  consti- 
tutions and  governments.  But  the  Federal  Convention, 
not  content  with  this  declaration,  provided  practical  safe- 
guards of  the  strongest  character. 

611.  State  Judges  Bound. — The  judges  in  every  State 
are  bound  by  the  national  Constitution,  laws,  and  treaties, 
no  matter  what  the  constitutions  and  laws  of  their  particu- 
lar States  may  contain.  All  State  officers  are  required  to 
take  an  oath  to  that  effect ;  but  there  is  peculiar  propriety 
in  singling  out  the  judges,  since  they  construe  and  declare 
the  law,  and  so  give  effect  to  it  by  their  judgments  and 
orders.  In  every  instance  in  which  a  State  judge  finds  the 
State  law  in  conflict  with  the  national  law,  he  must  disre- 
gard the  State  and  declare  for  the  Union.  Furthermore, 
he  is  bound  by  the  decisions  of  the  national  courts  in  respect 
to  the  national  Constitution  and  laws,  and  in  respect  to 
the  State  constitution  and  laws  in  so  far  as  these  involve 
federal  questions.  This  provision  tends  to  secure  a  con- 
sistent and  uniform  jurisprudence  throughout  the  United 
States,  as  well  as  to  maintain  the  supremacy  of  the  national 
authority. 

613.  The  Oath  Prescribed. — The  first  law  enacted  by  Congress 
under  the  Constitution  was  one  prescribing  the  oath  to  be  taken  by 
national  and  State  officers.  In  1862  a  very  stringent  oath,  popularly 
called  the  "  iron-clad  oath,"  was  prescribed  for  all  officers  under  the 
general  government,  including  Senators  and  Representatives.  This 
act  was  applied  in  1865  to  attorneys  practicing  in  the  national  courts, 
but   the   provision   was   declared    unconstitutional   by   the   Supreme 


THE  SUPREMACY  OF  THE  UNION.  345 

Court  in  1866/  The  act  of  1862  has  since  been  repealed.  The  oath 
of  1789  is:  "I,  A  B,  do  solemnly  swear,  or  affirm  (as  the  case  may 
be),  that  I  will  support  the  Constitution  of  the  United  States." 

613.  Limit  of  the  National  Supremacy. — The  su- 
premacy of  the  Union  is  Hmited  to  those  powers  and  func- 
tions that  are  delegated  to  it  by  the  Constitution.  Within 
this  sphere,  it  is  all-powerful;  beyond  this  sphere,  it  has 
no  power  whatever.  The  laws  enacted  by  Congress  are 
supreme  so  long  as  they  are  in  force;  when  they  are  de- 
clared repugnant  to  the  Constitution  by  the  proper  author- 
ity, they  are  null  and  void. 

614.  No  Religious  Test. — Governments  having  state 
churches  have  often  required  religious  qualifications  for 
holding  offices  or  public  trusts.  The  English  Test  and 
Corporate  Act,  passed  in  1675,  which  included  among  its 
qualifications  for  entering  on  any  municipal  office  a  recep- 
tion of  the  communion  according  to  the  rites  of  the  Angli- 
can Church,  was  not  repealed  until  1828.  Jews  were  not 
allowed  to  sit  in  the  House  of  Commons  until  1858.  The 
Lord  Chancellor  even  now  must  be  a  Protestant.  Similar 
tests  were  common  in  the  colonies,  and  have  also  existed 
in  the  States.  It  was  not  until  1877  that  New  Hampshire 
struck  from  her  constitution  clauses  requiring  her  governor 
and  legislators  to  be  adherents  of  the  Protestant  religion. 
The  national  Constitution  makes  religion  an  individual, 
and  not  a  political  matter,  by  establishing  the  widest 
tolerance.  However,  this  rule  has .  no  application  to  the 
States.  The  Supreme  Court  has  said :  "  The  Constitu- 
tion makes  no  provision  for  protecting  the  citizens  of  the 
respective  States  in  their  religious  liberties ;  this  is  left  to 
the  State  constitutions  and  laws ;  nor  is  there  any  inhibi- 
tion imposed  by  the  Constitution  of  the  United  States  in  this 
respect  on  the  States."  ^ 


*  Ex  Parte  Garland,  4  Wallace  333. 

'  Pennoli  v.  First  Municipality,  3  Howard  589. 


CHAPTER  XLV. 

THEORIES   OF  THE  UNION:   THE  CIVIL  WAR. 

Mention  has  been  made  more  than  once  in  these  pages 
of  conflicting  theories  of  the  Union  and  the  Constitution. 
The  Strict-construction  and  Loose-construction  schools 
have  their  favorite  theories  and  phrases.  To  some  extent, 
these  controversies  relate  to  names  and  words  rather  than 
to  facts  and  ideas,  but  by  no  means  wholly  so.  Two  main 
lines  of  divergent  thought  can  be  followed  from  the  very 
beginning  of  our  present  government. 

615.  State  Sovereignty. — The  theory  of  State  sovereignty  as- 
signs to  the  State  a  paramount  authority.  It  may  be  thus  surhmed 
up.  The  Declaration  of  Independence  was  the  work  of  thirteen  peo- 
ples, and  not  of  one  people.  It  made  the  States  as  independent  of 
one  another  as  of  England.  The  Confederation  was  the  work  of 
States  as  States,  and  so  was  the  Constitution.  It  was  framed  by 
State  delegates,  ratified  by  State  conventions,  and  created  a  govern- 
ment of  expressly  delegated  powers.  The  States  are  therefore  sover- 
eigns ;  the  citizen  owes  allegiance  first  to  his  State,  and  to  the  Union 
only  so  long  as  the  State  remains  in  the  Union.  The  United  States 
are  not  a  nation  in  the  sense  that  England  or  France  is  a  nation,  but 
a  confederation  or  league.  A  State  has  the  same  right  to  recall  the 
powers  that  it  has  delegated  to  the  United  States  that  it  had  to  dele- 
gate them  originally.  It  is  as  free  to  secede  from  the  Union  as  it  was 
to  accede  to  it  in  the  first  place.  Of  the  time  and  reason  for  such 
secession,  the  State  is  the  absolute  judge.  Furthermore,  if  a  State 
sees  fit  to  exercise  the  right  of  secession,  the  Union  has  no  legal  or 
constitutional  power  of  coercion.  Such  is  the  full-blown  theory  of 
State  sovereignty ;  there  is  a  milder  one  that  we  are  not  called  upon 
to  state. 

616.  Secession  of  the  Eleven  States. — The  theory  of  State 
sovereignty  obtained  general  currency  in  the  Southern  States  before 
the  Civil  War.  Accordingly,  when  the  election  of  President  Lincoln, 
as  they  thought,  endangered  their  rights  in  the  Union,  eleven  States 

(346) 


THEORIES  OF  THE  UNION :  THE  CIVIL  WAR.     347 

seceded  from  the  Union. ^  Such  opposition  as  these  acts  of  secession 
encountered  within  the  States,  was  made  mainly  on  the  ground  of 
expediency;  few  men  ventured  to  deny  tiie  doctrine  of  State  sover- 
eignty. The  ordinances  of  secession  were  enacted  in  most  cases  by 
State  conventions,  and  but  few  of  them  were  submitted  to  the  people 
for  their  ratification.  The  South  Carolina  ordinance  may  be  taken 
as  an  example.  It  simply  professed  to  undo  what  had  been  done 
seventy-two  years  before. 

"  We,  the  people  of  the  State  of  South  Carolina,  in  convention 
assembled,  do  declare  and  ordain,  and  it  is  hereby  declared  and  or- 
dained, that  the  ordinance  adopted  by  us  in  convention,  on  the  23d  of 
May,  in  the  year  of  our  Lord  1788,  whereby  the  Constitution  of  the 
United  States  was  ratified,  and  all  other  acts  and  parts  of  acts  of  the 
general  assembly  of  this  State  ratifying  amendments  of  the  said 
Constitution,  are  hereby  repealed ;  and  that  the  Union  now  subsisting 
between  South  Carolina  and  other  States,  under  the  name  of  the 
United  States  of  America,  is  hereby  dissolved." 

The  seceding  States  did  not  admit  secession  to  be  an  act  of  revo- 
lution, like  the  Declaration  of  Independence,  but  asserted  it  to  be  a 
constitutional  act.  How  naturally  it  sprang  from  the  doctrine  of 
State  sovereignty  is  apparent  at  a  glance. 

617.  The  National  Theory. — The  national  theory  has  been 
stated  in  various  forms.  The  following  is  a  summary  of  the  state- 
ment made  by  Chief-Justice  Chase  in  delivering  the  judgment  of  the 
Supreme  Court  in  the  celebrated  case  of  Texas  v.  White,  decided  in 
1869." 

The  Union  of  the  States  is  not,  and  never  was,  a  purely  arbitrary 
and  artificial  relation.  It  grew  out  of  the  common  origin,  sympa- 
thies, principles,  interests,  and  geographical  relations  of  the  colonies. 
It  was  strengthened  by  the  necessities  of  the  Revolutionary  War,  and 
the  Articles  of  Confederation  solemnly  declared  it  to  be  perpetual. 
Moreover,  the  Constitution  was  expressly  ordained  to  form  a  more 
perfect  union.  But  the  perpetuity  arid  indissolubility  of  the  Union 
by  no  means  implies  the  loss  of  distinct  and  individual  State  exist- 
ence, or  of  the  right  of  self-government  by  the  States.  On  the  con- 
trary, the  preservation  of  the  States  and  the  maintenance  of  their 

'  The   following  are  the   States  that  seceded,   with  the  dates   of  the  ordi- 
nances   of  secession: 

South  Carolina December  20,  i860    Texas February  i,  1861 

Mississippi January    9,  1861    Virginia April   17,  1861 

Florida January  to,  1861    Arkansas May  6,  1861 

Alabama January  11,  1861    North  Carolina May  20,  1861 

Georgia January  19,  1861    Tennessee June  8,  1861 

Louisiana January  36,  1861 

*  7  Wallace  700. 


348  THE  AMERICAN  GOVERNMENT. 

governments  are  as  much  within  the  design  and  care  of  the  Constitu- 
tion as  the  preservation  of  the  Union  and  the  maintenance  of  the 
national  government.  The  Constitution,  in  all  its  provisions,  looks 
to  an  indestructible  Union  composed  of  indestructible  States.  On 
becoming  a  member  of  the  Union,  any  new  State  enters  into  an  indis- 
soluble relation.  The  union  between  such  State  and  the  other  States 
is  as  complete,  as  perpetual,  and  as  indissoluble  as  the  union  between 
the  original  States.  There  is  no  place  for  reconsideration  or  revoca- 
tion, except  through  revolution  or  the  consent  of  the  States. 

6i8.  Status  of  Seceding  States  during  the  War.— While  the 
national  government  was  engaged  in  prosecuting  the  Civil  War,  and 
still  more  when  the  time  came  to  reconstruct  the  Southern  States, 
there  arose  wide  differences  of  opinion  as  to  the  relation  of  these 
States  to  the  Union.  Congress  never  gave  its  sanction  to  any  par- 
ticular theory,  but  in.  the  Reconstruction  Acts,  enacted  over  the 
President's  vetoes  in  March,  1867,  it  laid  down  the  conditions  upon 
which  the  seceding  States  could  be  restored  to  their  normal  relations, 
and  be  admitted  to  representation  in  the  two  houses  of  Congress. 
In  accordance  with  these  acts,  and  subsequent  supplementary  ones, 
reconstruction  was  eflfected. 

619.  Supreme  Court  View. — In  the  case  of  Texas  v>  White  the 
Supreme  Court  defines  its  view  of  secession  substantially  as  follows : 

Constitutionally  considered,  the  ordinances  of  secession,  and  all 
the  acts  of  the  legislatures  intended  to  give  these  effect,  were  abso- 
lutely null  and  void.  But  these  States  did  not  cease  to  be  States, 
nor  their  citizens  to  be  citizens  of  the  Union.  During  the  rebellion, 
they  had  no  governments  in  the  sense  of  the  Constitution.  The 
so-called  governments  were  usurping  governments,  organized  to 
carry  on  war  against  the  United  States.  It  was  necessary  that  the 
governments  and  the  people  of  these  States  should  be  restored  to 
peaceful  relations  to  the  United  States,  under  the  Constitution,  be- 
fore they  could  claim  the  rights  of  States.  The  power  to  suppress 
insurrection  and  to  carry  on  war,  conferred  by  the  Constitution,  gave 
the  nation  authority  to  suppress  the  rebellion;  and  the  power  to 
guarantee  to  every  State  a  republican  form  of  government,  also  con- 
ferred, gave  it  authority  to  provide  for  the  reestablishment  of  legal 
State  governments  in  the  room  of  those  that  had  been  subverted  and 
overthrown.  This  guarantee  it  was  the  duty  and  right  of  Congress 
to  carry  out.  The  power  conferred  by  the  guarantee  clause,  like 
other  powers,  carries  with  it  a  discretion  as  to  the  manner  of  its  ex- 
ercise. The  governments  organized  in  these  States  under  the  Recon- 
struction Acts  are  the  constitutional  governments  of  the  seceding 
States.  They  are  restored  State  governments,  organized  in  allegiance 
to  the  Union  for  the  benefit  of  the  States. 


THEORIES  OF  THE  UNION :  THE  CIVIL  WAR.     349 

620.  The  Antagonistic  Theories.^ — The  theories  of  the  Union 
described  above  were  many  years  in  course  of  formation.  The  early 
Strict-construction  statesmen,  who  held  the  milder  form  of  the  theory 
of  State  sovereignty,  contributed  important  ideas  to  the  formation 
of  the  stronger  form ;  but  it  was  John  C.  Calhoun,  more  than  any 
other  man,  who  completed  that  theory  and  gave  it  currency.  The 
national  theory  was  mainly  the  work  of  Hamilton,  Marshall,  Story, 
and  Webster.  The  Civil  War  was  but  the  clash  of  these  opposing 
theories ;  and  the  Supreme  Court,  in  Texas  v.  White,  merely  summdd 
up  the  results  of  the  appeal  to  the  court  of  war.  The  adjustment  of 
the  particular  and  general  elements  in  our  system  is  still  the  subject 
of  discussion,  and  it  will  remain  such  as  long  as  the  federal  system 
stands ;  but  it  is  not  easy  to  imagine  a  state  of  affairs  as  actually  ex- 
isting that  could  revive  the  old  theory  of  State  sovereignty.  For 
example,  the  State  of  Mississippi  has  inserted  this  article  in  her  bill 
of  rights,  adopted  in  1890 :  "  The  right  to  withdraw  from  the  Fed- 
eral Union  on  account  of  any  real  or  supposed  grievance,  shall  never 
be  assumed  by  this  State,  nor  shall  any  law  be  passed  in  derogation 
of  the  permanent  allegiance  of  the  citizens  of  this  State  to  the  gov- 
ernment of  the  United  States." 

Note. — President  Lincoln,  in  his  first  message  to  Congress,  referring  to 
the  "sophism  that  there  is  some  omnipotent  and  sacred  supremacy  pertaining 
to  a  State,"  observed:  "Our  States  have  neither  more  nor  less  power  than 
that  reserved  to  them  in  the  Union  by  the  Constitution,  no  one  of  them 
ever  having  been  a  State  out  of  the  Union.  The  original  ones  passed  into  the 
Union  even  before  they  cast  off  their  British  colonial  dependence;  and  the 
new  ones  came  into  the  Union  directly  from  the  condition  of  dependence, 
excepting  Texas.  And  even  Texas  in  its  temporary  independence  was  never 
designated  a  State.  The  new  ones  only  took  the  designation  of  States  on 
coming  into  the  Union,  while  that  name  was  first  adopted  by  the  old  ones  in 
and  by  the  Declaration  of  Independence.  Therein  the  United  Colonies  were 
declared  to  be  free  and  independent  States;  but  even  then  the  object  plainly 
was  not  to  declare  their  independence  of  one  another,  or  of  the  Union,  but 
directly  the  contrary,  as  their  mutual  pledge,  and  their  mutual  action  before, 
at  the  time,  and  afterwards  abundantly  show.  .  .  .  The  Union  is  older 
than  any  of  the  States,  and  in  fact  it  created  them  as  States.  Originally  some 
dependent  colonies  made  the  Union;  and,  in  turn,  the  Union  threw  off  their 
old  dependence  for  them  and  made  them  States  such  as  they  are.  Not  one  of 
them  ever  had  a  State  constitution  independent  of  the  Union." 


•  A  good  statement  of  constitutional  theories  is  given  by  Johnston.  Sec 
Lalor's  Cyclopeedia,  "Declaration  of  Independence,"  and  other  articles  therein 
referred  to. 


CHAPTER  XLVI. 

RATIFICATION  OF  THE  CONSTITUTION. 

Article  VII. 

The  ratification  of  the  conventions  of  nine  States  shall  be  suffi- 
cient for  the  establishment  of  this  Constitution  between  the  States  so 
ratifying  the  same. 

621.  Reasons  for  this  Article. — No  amendment  could 
be  made  to  the  Articles  of  Confederation,  unless  proposed  by 
Congress  and  ratified  by  the  legislatures  of  all  the  States. 
But  the  Convention  that  Congress  called  to  its  assistance 
in  1787,  solely  and  expressly  to  revise  the  Articles  of 
Confederation,  and  report  such  alterations  and  provisions 
therein  as  should,  when  approved  by  Congress  and  ratified 
by  the  States,  render  them  adequate  to  the  exigencies  of 
government  and  the  preservation  of  the  Union,  at  once 
abandoned  this  plan,  and  took  up  the  task  of  framing  a  new 
constitution.  In  this  way  the  rules  requiring  the  agreement* 
of  Congress  to  the  Constitution,  and  a  unanimous  ratifica- 
tion, were  avoided.  A  new  constitution  could  prescribe  its 
own  rule  of  ratification.  The  Convention  fixed  upon  nine 
States,  the  number  required  by  the  Articles  for  transacting 
business  of  first-class  importance.  Had  the  agreement  of 
Congress  and  a  unanimous  vote  of  the  States  been  neces- 
sary, the  Constitution  would  never  have  been  adopted. 
Still,  the  course  taken  in  1787  was  in  eflFect  revolutionary, 
since  it  disregarded  the  provisions  of  the  constitution  already 
in  force. 

622.  Status  of  States  not  Ratifying. — What  would  have 
been  the  status  of  States  permanently  refusing  to  ratify  the 
Constitution?  While  the  Constitution  was  under  consider- 
ation,  little   was   said   about  this    delicate   question.     The 

(350) 


RATIFICATION  OF  THE  CONSTITUTION.  351 

policy  was,  by  argument  and  persuasion,  to  secure  a  unani- 
mous ratification,  if  possible,  and  this  policy  fortunately 
proved  successful. 

It  has  been  held  that  if  Rhode  Island  and  North  Carolina  had 
persisted  in  their  first  refusal  to  ratify,  they  would  have  become  for- 
eign nations.  Practically  this  is  an  impossible  view.  Those  States 
belonged  to  the  Union  that  was  formed  in  1775;  they  had  participated 
in  the  war  of  independence ;  the  public  debt  was  in  part  their  burden ; 
they  held  important  territorial  positions  in  the  dominion  surrendered 
by  Great  Britain  in  1783.  These  facts  precluded  their  being  permitted 
to  set  up  for  themselves  as  independent  nations.  The  logic  of 
events  compelled  them  to  share  the  fortunes  of  their  sister  States. 
Congress  began  to  give  attention  to  these  States  soon  after  the  two 
houses  were  organized  in  1789.  Ships  belonging  to  their  citizens 
were  exempted  from  paying  the  duties  levied  on  foreign  ships,  and 
Rhode  Island  asked  for  such  an  exemption.  This  was  an  implied 
acknowledgment  on  her  part,  as  well  as  an  assertion  on  the  part  of 
Congress,  that  Rhode  Island  was  still  one  of  the  United  States.  In 
May,  1790,  the  Senate  passed  a  bill  forbidding  commercial  intercourse 
between  that  State  and  other  States,  and  calling  upon  her  for  her 
share  of  the  expenses  of  the  war;  the  House  delayed  action,  to  see 
what  the  State  convention  that  had  been  called  would  do.  Had  it 
been  necessary,  compulsion  would  no  doubt  have  been  ultimately 
employed  against  Rhode  Island  and  North  Carolina.  Happily,  their 
ratifications  made  this  unnecessary. 


CHAPTER  XLVII. 

THE  BILL  OF  RIGHTS. 

Amendments  I.-X. 

The  several  propositions  relating  to  amending  the  Con- 
stitution before  it  should  go  into  operation,  have  been  stated 
in  Chapter  X. ;  also  the  plan  adopted  by  its  friends  in  Mas- 
sachusetts, and  in  some  other  States,  for  eflFecting  its  rati- 
fication, which  pledged  them  to  favor  amendments  deemed 
necessary  when  the  time  came. 

623.  Ten  Amendments  Made. — When  Congress,  at  its 
first  session,  took  up  the  subject,  it  was  found  that  Mas- 
sachusetts had  proposed  9  amendments,  South  Carolina  4, 
North  Carolina  26,  Virginia  20,  New  York  32,  and  New 
Hampshire  12 ;  that  minorities  of  the  Pennsylvania  and 
Maryland  conventions  had  proposed  14  and  28  respectively ; 
that  Virginia  had  proposed  a  bill  of  rights  containing  20 
articles,  and  New  York  one  of  24, —  the  whole  making  a 
total  of  189  items.  Many  of  them  were  repetitions,  but 
there  was  still  a  large  number  of  independent  propositions. 
Twelve  amendments,  most  of  them  selected  from  this  mass, 
received  a  two  thirds  vote  of  each  house,  and  were  sent 
to  the  State  legislatures  for  their  action.  Ten  of  the  twelve 
received  the  required  number  of  ratifications,  and  were  de- 
clared to  be  in  force,  December  15,  1791. 

Article  I. —  Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof ;  or  abridg- 
ing the  freedom  of  speech  or  of  the  press,  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  government  for  a  redress 
of  grievances. 

624.    No    State    Church,    etc. — Congress   has    nothing 
whatever  to  do  with  churches  or  with  religion  as  such.     An 

(352) 


THE  BILL  OF  RIGHTS.  353 

absolute  separation  of  Church  and  State  is  one  of  the  char- 
acteristic features  of  our  Constitution.  Then  freedom  of 
speech  and  of  the  press  is  another  characteristic  feature. 
It  is  to  be  observed,  however,  that  these  phrases  are  of 
necessity  general  and  indefinite.  Whether  one  has  a  right 
to  utter  his  thoughts,  depends  on  times  and  places,  as  well 
as  on  the  thoughts  themselves.  The  freedom  of  the  plat- 
form or  market-place  cannot  be  tolerated  in  a  garrison  or 
camp.  Words  that  are  harmless  or  beneficial  in  time  of 
peace,  may  be  injurious  in  time  of  war.  Mr.  Hamilton 
said  the  liberty  of  the  press  could  not  be  regulated  by 
phrases  or  declarations,  but  "  must  depend  altogether  on 
public  opinion,  and  on  the  general  spirit  of  the  people  and 
of  the  government."  ^  The  right  to  ask  that  grievances 
be  redressed,  or  the  right  of  petition  as  it  is  called,  is  found 
in  the  old  English  charters ;  the  colonists  brought  it  with 
them  from  the  old  home;  their  descendants  put  it  in  the 
first  State  constitutions,  and  naturally  desired  to  see  it  in- 
corporated in  the  national  Constitution. 

The  Sedition  Law,  enacted  in  1798,  forbade,  under  the  penalty  of  a 
fine  of  not  more  than  $2,000  and  imprisonment  of  not  more  than 
two  years,  the  publication  or  printing  of  any  false,  scandalous,  and 
malicious  writings  of  any  sort  against  the  government  of  the  United 
States,  either  house  of  Congress,  or  the  President,  with  intent  to 
defame  them,  or  to  bring  them  into  contempt,  or  to  stir  up  seditions, 
or  to  encourage  unlawful  combinations  against  the  government,  etc. 
It  was  strongly  opposed  at  the  time  as  an  abridgment  of  the  liberty 
of  speech  and  of  the  press,  and  it  expired  by  limitation  in  1801. 

Article  II. —  A  well-regulated  militia  being  necessary  to  the  se- 
curity of  a  free  State,  the  right  of  the  people  to  keep  and  bear  arms 
shall  not  be  infringed. 

625,  Right  to  Bear  Arms. — Despotic  rulers  have  gen- 
erally been  unfriendly  to  a  citizen  soldiery,  rather  preferring 
to  rely  upon  regular  troops.  The  friends  of  liberty,  on  the 
other  hand,  have  commonly  been  unfriendly  to  large  stand- 
ing armies,  and  friendly  to  a  citizen  soldiery.     One  of  the 


The  Federalist,  No.  84. 

AM.  GOV. 93 


354  THE  AMERICAN  GOVERNMENT. 

charges  made  against  the  king  in  the  Declaration  of  Inde- 
pendence was  that  he  had  quartered  large  bodies  of  armed 
troops  among  the  people.  To  deny  the  people  the  right  of 
bearing  arms,  or  even  of  having  them  in  their  possession,  is 
one  of  the  steps  commonly  taken  by  rulers  seeking  to  estab- 
lish or  maintain  arbitrary  government.  This  article  throws 
the  safeguard  of  the  Constitution  around  the  militia  of  the 
States. 

Article  III. —  No  soldier  shall,  in  time  of  peace,  be  quartered  in 
any  house  without  the  consent  of  the  owner,  nor  in  time  of  war,  but 
in  a  manner  to  be  prescribed  by  law. 

626.  No  Billeting  of  Soldiers. — The  objects  of  billeting 
soldiers  upon  the  people,  as  it  was  formerly  called  in  Eng- 
land, were  to  compel  those  in  whose  houses  they  were  bil- 
leted to  support  them,  and  at  the  same  time  to  overawe  and 
intimidate  them  and  their  neighbors. 

Article  IV. —  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects  against  unreasonable  searches  and  seizures 
shall  not  be  violated,  and  no  warrant  shall  issue  but  upon  probable 
cause,  supported  by  oath  or  affirmation,  and  particularly  describing 
the  place  to  be  searched,  and  the  persons  or  things  to  be  seized. 

627.  Freedom  from  Searches,  etc. — Protection  against 
unreasonable  searches  and  seizures,  the  English  people  had 
through  great  effort  and  sacrifice,  extorted  from  royal 
power.  The  maxim,  "  every  man's  house  is  his  castle," 
was  thoroughly  grounded  in  the  English  constitution.  The 
American  colonists  brought  this  immunity  with  them  from 
the  mother  country;  they  cherished  and  protected  it  until 
the  Revolutionary  period,  when  they  incorporated  it  in  their 
State  constitutions,  and  naturally  desired  to  see  it  placed 
in  the  national  Constitution. 

[Articles  V.,  VI.,  VII.,  and  VIII.  have  been  discussed  in  the  chap- 
ters relating  to  the  judicial  department.] 

Article  IX. —  The  enumeration  in  the  Constitution  of  certain 
rights  shall  not  be  construed  to  deny  or  disparage  others  retained  by 
the  people. 

628.  The  Enumeration  of  Rights. — The  Constitution 


THE  BILL  OF  RIGHTS.  355 

and  Amendments  expressly  enumerate  certain  rights  as 
reserved  or  retained  by  the  people.  Amendments  I.,  II., 
III.,  and  IV.  are  examples.  The  force  of  this  article  is 
that  the  particular  enumeration  of  such  rights  shall  not 
in  any  way  be  construed  as  meaning  that  other  rights,  not 
so  enumerated,  are  surrendered  or  in  any  way  impaired. 

Article  X. — The  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively,  or  to  the  people. 

629.  Powers  Not  Delegated. — ^As  shown  in  Chaps.  XII. 
and  XXV.,  this  article  is  a  formal  statement  of  the  theory 
on  which  the  national  Constitution  was  framed,  viz.,  a 
government  of  delegated  powers.  When  it  was  under  con- 
sideration in  the  House  of  Representatives,  two  motions 
were  made  to  insert  the  word  "  expressly "  before  dele- 
gated, but  both  failed,  showing  conclusively  that  the  House 
was  unwilling  to  sanction  the  doctrine  of  express  delega- 
tion, or  to  deny  implied  delegation. 

630.  Amendments  I.-X.  a  Bill  of  Rights. — The  fore- 
going amendments  were  proposed  mainly  with  reference  to 
the  controversy  about  a  bill  of  rights;  they  are  a  bill  of 
rights  de  facto,  although  not  so  called.  Some  said  at  the 
time  that  they  were  of  no  value,  since  they  secured  rights 
never  endangered.  They  satisfied,  however,  a  popular  de- 
mand, and  several  of  them  have  proved  practical  restraints 
on  the  federal  government.  We  are  so  little  familiar  with 
the  acts  prohibited,  as  the  abridgment  of  the  freedom  of 
speech,  establishments  of  religion,  the  quartering  of  soldiers 
in  private  houses,  etc.,  that  we  but  poorly  appreciate  at 
what  cost  these  immunities  were  originally  obtained  by 
our  English  ancestors.  The  men  of  1789,  who  had  them- 
selves passed  through  a  struggle  with  arbitrary  power,  had 
a  more  vivid  conception  of  their  value. 

631.  Application  of  the  Amendments. — It  has  some- 
times been  contended  that  several  of  these  amendments 
apply  to  the  States  as  well  as  the  Nation.  For  example,  it 
has  been  said   that  the  Fifth    Amendment   extends  to  all 


556  THE  AMERICAN  GOVERNMENT. 

judicial  tribunals  in  the  United  States,  whether  constituted 
by  the  Congress  of  the  United  States  or  by  the  States 
individually.  This  view  is  incorrect.  Chief-Justice  Mar- 
shall said  of  all  the  amendments  made  up  to  1832,  that  they 
"  contain  no  expression  indicating  an  intention  to  apply 
them  to  State  governments."  And  Chief-Justice  Chase  held, 
in  1868,  that  the  Fifth  and  Sixth  "  were  not  designed  as 
limits  upon  the  State  governments  in  reference  to  their  own 
citizens,  but  exclusively  as  restrictions  upon  Federal  pow- 
er." ^ 

[Article  XL  has  been  quoted  and  discussed  in  dealing  with  the 
judiciary. 

Article  XII.  has  been  considered  in  connection  with  the  election 
of  the  President  and  Vice  President.] 

^  Twitchell  v.  the  Commonwealth,  7  Wallace  321. 


CHAPTER  XLVIIL 

SLAVERY  AND  RECONSTRUCTION. 

Amendments  XIII.-XV. 

632.  Slavery,  North  and  South. — Under  the  Constitution,  slav- 
ery continued  to  decline  in  the  North  until  it  came  to  an  end  without 
shock  or  violence.  In  1787  it  was  generally  expected  that  such  would 
be  the  result  in  the  South  also  at  no  distant  day,  but  new  causes  gave 
to  history  a  wholly  different  direction.  In  course  of  time,  the  whole 
industrial  system  of  the  South  was  adjusted  to  slavery  as  a  center, 
and  this  adjustment  was  followed,  somewhat  later,  by  the  adjustment 
of  politics  to  the  same  center. 

633.  Free  and  Slave  States. — The  question  whether  the  virgin 
lands  beyond  the  Alleghany  Mountains  should  be  devoted  to  slave 
labor  or  to  free  labor  was  raised  as  early  as  1784.  In  1787  Congress 
prohibited  slavery  throughout  the  Northwest  Territory  forever;  but 
in  the  Territories  and  States  organized  south  of  the  Ohio  River  it 
did  not  apply  the  same  principle.  At  first  there  were  seven  Northern 
and  six  Southern  States.  Moreover,  physical  causes  and  the  desire 
of  statesmen  to  preserve  what  they  called  the  "  balance  of  the  Con- 
stitution "  tended  to  keep  the  numbers  of  free  and  slave  States 
equal.  In  1819  the  balance  was  perfect,  11  to  11;  moreover,  up  to 
that  time  slavery  had  not  become  a  political,  or  at  least  not  a  sec- 
tional question. 

634.  The  Missouri  Compromise. — The  feeling  that  no  more 
slave  States  should  be  admitted  into  the  Union,  declared  itself  when 
Missouri  applied  for  admission  in  1818.  The  Missouri  Compromise 
of  1820  embraced  two  main  features;  the  admission  of  Missouri  as  a 
slave  State,  and  the  enacting  of  the  following  prohibition :  "  That 
in  all  that  territory  ceded  by  France  to  the  United  States  under  the 
name  of  Louisiana,  which  lies  north  of  36°  30'  north  latitude,  except- 
ing only  such  part  thereof  as  is  within  the  limits  of  the  State  con- 
templated by  this  act,  slavery  and  involuntary  servitude,  otherwise 
than  in  the  punishment  of  crime,  whereof  the  party  shall  have  been 
duly  convicted,  shall  be,  and  is,  hereby  forever  prohibited." 

635.  The  Admission  of  Texas. — After  1820  the  political  sig- 
nificance of  the  names  North  and  South  became  more  definite.    The 

(357) 


358  THE  AMERICA'N  GOVERNMENT. 

admission  of  Maine  to  the  Union  in  1820  balanced  the  admission  of 
Missouri  in  1821.  Arkansas  balanced  Michigan.  Florida  gave  the 
South  the  preponderance.  But  territory  available  for  slave  States 
was  now  used  up ;  nothing  remained  south  of  the  parallel  36°  30'  but 
the  Indian  Territory,  which  had  already  been  dedicated  to  the  Indian 
tribes.  In  the  North,  Iowa  and  Wisconsin  were  on  the  threshold 
of  statehood,  and  southwest  and  west  of  those  States  lay  a  great 
region  out  of  which  numerous  States  have  since  been  carved.  This 
state  of  things  Southern  statesmen  strove  to  meet  by  securing  the 
admission  of  Texas  to  the  Union  in  1845. 

636.  The  Mexican  Annexations  and  Wilmot  Proviso. — The 
annexation  of  Texas  was  shortly  followed  by  the  Mexican  War, 
which  closed  in  1848  with  a  large  annexation  of  Mexican  territory. 
Again,  in  1853,  a  second,  though  much  smaller,  annexation  was  made. 
Before  the  war  closed,  the  following  proposition  was  offered  irv  the 
House  of  Representatives: 

"  Provided  that,  as  an  express  and  fundamental  condition  to  the 
acquisition  of  any  territory  from  the  Republic  of  Mexico  by  the 
United  States,  by  virtue  of  any  treaty  which  may  be  negotiated 
between  them,  and  to  the  use  by  the  executive  of  moneys  herein 
appropriated,  neither  slavery  nor  involuntary  servitude  shall  ever 
exist  in  any  part  of  said  territory,  except  for  crime,  whereof  the  party 
shall  be  first  duly  convicted." 

This  proposition  is  known  as  the  Wilmot  proviso,  from  Mr.  David 
Wilmot,  of  Pennsylvania,  who  offered  it.  Mexico  had  abolished 
slavery;  and  those  who  favored  this  proviso,  as  the  majority  of  the 
Northern  people  did,  desired  to  perpetuate  the  act  so  far  as  any 
Mexican  territory  coming  to  the  United  States  was  concerned.  It 
failed,  however,  of  adoption. 

637.  The  Compromise  of  1850. — Almost  at  once  it  became 
necessary  to  deal  with  the  territory  acquired  in  1848.  This  was 
done,  for  the  time,  by  the  adoption  of  a  series  of  measures  known 
together  as  the  Compromise  of  1850,  of  which  these  are  the  chief 
provisions :  the  admission  of  California  to  the  Union  as  a  free  State ; 
the  enacting  of  the  Fugitive  Slave  Law ;  the  prohibition  of  the  slave 
trade,  but  not  of  slavery,  in  the  District  of  Columbia ;  the  pajmient  to 
Texas  of  $10,000,000  for  territory  which  she  claimed  northwest  of  her 
present  boundary;  and  the  organization  of  the  Territories  of  New 
Mexico  and  Utah  without  slavery  being  either  expressly  prohibited  or 
expressly  permitted.  The  Compromise  of  1820  was  in  no  way  dis- 
turbed. In  these  disputes  was  evolved  the  dogma  called  "  popular 
sovereignty,"  according  to  which  the  question  whether  there  should 
be  slavery  in  any  Territory  should  be  left  for  the  people  of  the  Ter- 
ritory to  settle  for  themselves. 


SLAVERY  AND  RECONSTRUCTION.       359 

638.  North  and  South. — In  these  transactions  the  North  and 
the  South  did  not  act  as  units.  A  number  of  men  in  the  South  always 
opposed  the  aggressive  proslavery  policy;  a  still  larger  number  in 
the  North  opposed,  or  were  indifferent  to,  the  antislavery  sentiment 
of  that  section.  Political  parties  had  never  been  organized  with  ref- 
erence to  slavery;  thus  the  issue  tended  to  become  more  bitter  and 
more  sectional,  apd  parties  and  politics  were  national  only  so  long  as 
slavery  was  kept  out  of  sight. 

639.  Repeal  of  the  Missouri  Compromise. — The  bill  for  organ- 
izing the  Territories  of  Kansas  and  Nebraska,  approved  by  President 
Pierce,  May  30,  1854,  declared  the  prohibition  of  1820  "  inoperative 
and  void,  being  inconsistent  with  the  principle  of  non-intervention 
by  Congress  with  slavery  in  the  States  and  Territories,  as  recognized 
by  the  legislation  of  1850,  commonly  called  the  compromise  meas- 
ures." The  true  intent  and  meaning  of  the  Kansas-Nebraska  Act 
was  also  declared  to  be  "  not  to  legislate  slavery  into  any  Territory 
or  State,  nor  to  exclude  it  therefrom,  but  to  leave  the  people  thereof 
perfectly  free  to  form  and  regulate  their  domestic  institutions  in  their 
own  way,  subject  only  to  the  Constitution  of  the  United  States." 

640.  Position  of  Parties  in  1856. — The  new-formed  Republican 
party  disclaimed  any  intention  of  interfering  with  slavery  in  the 
States  where  it  existed ;  but  its  first  platform  denied  the  right  of  any 
authority,  whether  of  Congress  or  a  territorial  government,  to  give 
legal  existence  to  slavery  in  any  Territory  of  the  United  States,  and 
declared  also  that  the  Constitution  gave  Congress  sovereign  power 
over  the  Territories,  and  that  it  was  both  the  right  and  the  duty  of 
Congress  in  exercising  this  power  to  prohibit  polygamy  and  slavery. 
On  the  other  hand,  the  Democratic  party  put  forth  in  1856  a  dec- 
laration for  "  Non-interference  with  slavery  in  the  States  and  Terri- 
tories, or  in  the  District  of  Columbia."  Slavery  in  the  Territories 
now  became  the  great  political  issue.  Mr.  Buchanan,  the  Demo- 
cratic candidate  for  President,  was  elected  on  this  issue  in  1856. 

641.  Dred  Scott- Decision. ' — In  delivering  the  decision  of  the 
Supreme  Court  in  the  celebrated  Dred  Scott  case,  in  1857,  Chief- 
Justice  Taney  denied  that  negroes  had  a  legal  existence  as  persons  in 
the  United  States,  or  that  they  could  sue  in  the  national  courts.  He 
denied,  also  that  Congress  had  supreme  control  over  the  Territories, 

.  and  pronounced  the  Missouri  Compromise  of  1820  unconstitutional. 

Justices  McLean  and  Curtis  dissented.    This  decision  tended  greatly 

to  intensify  the  antislavery  sentiment  of  the  North,  as  the  Fugitive 

Slave  Law  had  also  done. 

643.    Presidential  Election  of  i860. — In  the  canvass  of  i860 


*  Dred  Scott  v.  Sandford,  19  Howard  538- 


360  THE  AMERICAN  GOVERNMENT. 

the  Republican  party  stood  united  in  opposition  to  the  extension  of 
slavery.  The  Democratic  party,  on  the  other  hand,  divided  on  the 
true  intent  and  meaning  of  the  non-interference  principle.  Both  the 
Douglas  and  the  Breckenridge  wings  agreed  that  Congress  had  noth- 
ing to  do  with  the  domestic  institutions  of  the  Territories  and  States; 
the  people  themselves,  or  the  popular  sovereigns,  they  said,  must  de- 
cide such  questions.  But  when,  and  in  what  capacity,  should  the 
people  assert  their  power?  The  Breckenridge  platform  said  the  peo- 
ple could  exercise  it  only  when  forming  a  constitution  for  a  State  to 
be  admitted  to  the  Union,  and  that,  in  the  meantime,  all  citizens  of 
the  United  States  had  an  equal  right  to  settle  in  a  Territory  with 
their  property  of  all  kinds,  without  their  rights  of  person  or  property 
being  destroyed  or  injured  by  congressional  or  territorial  legislation. 
The  Douglas  platform  said,  whether  a  territorial  legislature  could  or 
could  not  prohibit  slavery  was  a  question  for  the  Supreme  Court  to 
determine.  The  result  of  the  election  was  that  Abraham  Lincoln, 
the  Republican  candidate,  received  180  electoral  votes  out  of  303,  and 
was  declared  duly  elected. 

Now  followed  the  secession  of  the  eleven  States,  as  related  in  a 
previous  chapter. 

643.  Emancipation  Proclamation. — In  the  North,  slavery  was 
generally  considered  the  cause  of  the  secession  and  the  war,  and  the 
belief  gained  ground,  as  time  went  on,  that  the  war  could  not  be 
ended  without  destroying  its  cause.  President  Lincoln,  who  shared 
this  belief,  issued  a  preliminary  proclamation,  September  22,  1862, 
warning  the  inhabitants  of  the  insurrectionary  States  that,  on  the 
first  day  of  January,  1863,  all  persons  held  as  slaves  within  any  State 
or  designated  part  of  a  State,  the  people  whereof  should  then  be  in 
rebellion  against  the  United  States,  should  be  then  and  forever  free ; 
and  the  executive  government  of  the  United  States,  including  the 
military  and  naval  authority  thereof,  would  recognize  and  maintain 
the  freedom  of  such  persons.  As  the  seceded  States  paid  no  heed  to 
this  proclamation,  on  the  day  named  the  President  issued  his  Eman- 
cipation Proclamation,  in  which  he  designated  Arkansas,  Texas, 
Louisiana,  except  thirteen  enumerated  parishes,  Mississippi,  Ala- 
bama, Florida,  Georgia,  South  Carolina,  North  Carolina,  and  Vir- 
ginia, except  forty-eight  counties  (or  West  Virginia  and  seven 
enumerated  counties  in  the  eastern  part  of  the  State),  as  the  States 
and  parts  of  States  which  were  in  rebellion,  and  to  which  the  proc- 
lamation applied,  in  accordance  with  the  terms  of  the  previous 
proclamation. 

The  Emancipation  Proclamation  was  a*  war  measure ;  no  one  pre- 
tended that  the  President  could  have  issued  it  in  time  of  peace.  It 
ran :   "  I,  Abraham  Lincoln,  President  of  the  United  States,  by  virtue 


SLAVERY  AND  RECONSTRUCTION.  *    361 

of  the  power  in  me  vested  as  commander  in  chief  of  the  army  and 
navy  of  the  United  States,  in  time  of  actual  armed  rebelHon  against 
the  authority  and  government  of  the  United  States,  and. as  a  fit  and 
necessary  war  measure  for  suppressing  said  rebellion,  do,"  etc. 

644.  Amendment  XIII. — President  Lincoln's  proclama- 
tion left  slavery  undisturbed  in  Maryland,  Delaware,  Ken- 
tucky, Tennessee,  and  Missouri,  and  in  parts  of  Virginia  and 
Louisiana.  To  these  States  and  parts  of  States  his  power 
as  commander  in  chief  did  not  extend,  as  they  could  not 
then  be  considered  to  be  in  rebellion.  But  the  conviction 
that  slavery  should  come  to  an  end  with  the  war  continued 
to  spread.  So  Congress  —  the  Senate,  April  8,  1864,  and 
the  House  of  Representatives,  January  31,  1865  —  proposed 
an  amendment  in  these  words : 

Article  XIII. 

"Section  i. — Neither  slavery  nor  involuntary  servitude,  except  as 
a  punishment  for  crime  whereof  the  party  shall  have  been  duly  con- 
victed, shall  exist  within  the  United  States,  or  any  place  subject  to 
their  jurisdiction. 

"Section  2. — Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation." 

Secretary-of-State  Seward  issued  his  certificate  Decem- 
ber 18,  1865,  announcing  that  the  amendment  had  received 
the  ratifications  of  the  requisite  number  of  States,  and  de- 
claring it  valid  as  a  part  of  the  Constitution.  The  first 
section  calls  for  no  comment ;  of  the  second  one  it  may  be 
said,  as  of  the  similar  sections  found  in  the  two  succeeding 
amendments,  that  they  are  mere  surplusage,  as  Congress 
would  possess  such  great  power  without  a  formal  delega- 
tion. 

In  his  certificate,  Mr.  Seward  named  twenty-seven  of  the  thirty- 
six  States  as  having  ratified  the  amendment,  just  three  fourths. 
Eight  of  these  had  seceded ;  they  had  formed  new  State  constitutions 
under  the  proclamations  of  Presidents  Lincoln  and  Johnson,  but  not 
one  of  them  was  represented  in  Congress,  and  not  one  had  Congress 
declared  restored  to  the  Union.  Subsequently,  Congress  declared 
these  eight  States,  and  two  others,  in  a  state  of  insurrection.  Hence 
the  validity  of  the  ratification  was  sometimes  questioned.    Two  re- 


362  *        THE  AMERICAN  GOVERNMENT. 

plies  have  been  made  to  the  objection:  first,  that  the  nineteen  loyal 
States  that  ratified  were  three  fourths  of  the  States  of  that  class,  and 
that  these  were  all  the  States  that  should  be  consulted ;  second,  that 
Congress  had  not,  at  the  time,  declared  the  ten  States  in  insurrection, 
and  that  the  subsequent  act  was  not  retroactive.  The  amendment, 
however,  was  sent  to  all  the  States  indifferently.  In  connection  with 
the  first  answer  it  may  be  remarked  that  the  first  ten  amendments 
did  not  receive  the  ratification  of  three  fourths  of  the  thirteen  States, 
but  only  of  the  eleven  that  had  ratified  the  Constitution  at  the  time  of 
their  adoption.  Four  loyal  States  ratified  Amendment  XIII.  after 
Mr.  Seward's  certificate  was  issued. 

645.  Amendment  XIV. — The  Fourteenth  Amendment, 
which  was  a  part  of  the  plan  of  reconstruction  then  favored 
by  a  majority  of  Congress,  was  proposed  June  16,  1866.  Its 
ratification  by  the  ten  States  that  were  declared  in  insurrec- 
tion in  March,  1867,  was  made  a  condition  of  their  being 
formally  restored  to  the  Union.  By  July  20,  1868,  six  of 
these  States  and  twenty-three  others  had  given  their  ratifi- 
cations, although  Ohio  and  New  Jersey  had  subsequently 
withdrawn  theirs.  Twenty-nine  States  are  three  fourths  of 
thirty-seven  States,  but  twenty-seven  are  not.  Secretary 
Seward,  on  the  date  last  given,  issued  his  certificate  reciting 
the  facts,  and  stating  that  the  amendment  had  been  ratified, 
provided  the  ratifications  of  Ohio  and  New  Jersey  were  to 
be  counted,  a  point  that  he  had  not,  he  said,  legal  power  to 
decide.  Congress  immediately  adopted  a  concurrent  reso- 
lution declaring  the  amendment  ratified,  and  a  part  of  the 
Constitution,  and  instructing  the  Secretary  to  issue  a  cer- 
tificate to  that  effect.  This  he  accordingly  did  July  28, 
1868.  Subsequently  other  ratifications  were  given,  making 
thirty-three  in  all. 

Section  i. — All  persons  born  or  naturalized  in  the  United  States 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside.  No  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States ;  nor  shall  any  State  deprive  any  per- 
son of  life,  liberty,  or  property  without  due  process  of  law.  nor  deny 
to  any  person  within  its  jurisdiction  the  equal  protection  of  the  laws. 

646.  Citizenship  Defined. — This  clause  is  a  denial  of 


SLAVERY  AND  RECONSTRUCTION.       363 

the  principle  on  which  the  Dred  Scott  decision  rested,  viz., 
that  a  negro  could  not  be  a  citizen  of  the  United  States. 
The  Civil  Rights  Act  of  April,  1866,  had  declared  the  right 
of  colored  persons  to  citizenship;  but  as  this  was  only 
opposing  an  act  of  Congress  to  a  decision  of  the  Supreme 
Court,  it  was  deemed  advisable  to  declare,  by  constitu- 
tional provision,  all  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  citi- 
zens of  the  United  States  and  of  the  State  wherein  they 
reside.  The  privileges  or  immunities  of  the  citizens  of  the 
United  States  cannot  be  readily  catalogued;  but  legal  pro- 
tection of  life,  liberty,  and  property,  the  right  to  form  fam- 
ily relations,  the  right  to*  exemption  from  unequal  taxa- 
tion, to  choose  one's  profession,  and  to  the  use  of  the 
courts  of  law,  are  unquestionably  included.  The  suffrage 
is  a  political  and  not  a  civil  right. 

647.  Due  Process  of  Law. — The  effect  of  the  provision 
in  relation  to  due  process  of  law,  is  that  these  rights  are 
placed  under  the  protection  of  known  and  established  prin- 
ciples and  maxims.  Life,  liberty,  and  property  are  repre- 
sentative terms  and  cover  every  right  to  which  a  member 
of  the  body  politic  is  entitled  under  the  phrase  "  the  equal 
protection  of  the  laws."  It  is  not  understood  that  this 
phrase  relates  to  class  distinctions  that  are  founded  in  na- 
ture and  reason,  but  only  such  as  are  purely  arbitrary. 
"It  is  a  formal  declaration,"  says  Judge  Cooley,  "of  the 
great  principle  that  has  been  justly  said  to  pervade  and 
animate  the  whole  spirit  of  our  constitution  of  govern- 
ment, that  all  are  equal  before  the  law." 

The  Supreme  Court  has  refused  writs  of  habeas  corpus  asked  for 
to  stay  the  execution  of  criminals  condemned  to  death  by  the  use  of 
electricity  under  a  law  of  New  York  prescribing  that  mode  of  pun- 
ishment in  capital  cases.  In  Kemmler's  case*  the  petition  for  the 
writ  was  put  on  the  ground  that  since  the  punishment  was  cruel  and 
unusual,  the  execution  of  the  sentence  would  be  in  contravention  of 
the  clause  that  "no  State  shall  deprive  any  person  of  life, 'liberty,  or 

*  In  Re  Kemmler,  petitioner,   136  U.  S.  436. 


364  THE  AMERICAN  GOVERNMENT.       . 

property  without  due  process  of  law,  nor  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws."  The  court  held 
that  the  statute  was  not  repugnant  to  the  Constitution.  The  Chief 
Justice  said  burning  at  the  stake,  crucifixion,  breaking  at  the  wheel, 
or  the  like,  would  be  cruel  punishments  within  the  meaning  of  the 
Constitution.  The  court  also  held  that  Amendment  VIll.  has  no 
application  to  State  jurisprudence.  The  courts  of  New  York  have 
also  decided  that  the  proposed  punishment  is  not  cruel  or  unusual 

Section  2. — Representatives  shall  be  apportioned  among  the  sev- 
eral States  according  to  their  respective  numbers,  counting  tlie  whole 
number  of  persons  in  each  State,  excluding  Indians  not  taxed.  But 
when  the  right  to  vote  at  any  election  for  the  choice  of  electors  for 
President  and  Vice  President  of  the  United  States,  Representatives 
in  Congress,  the  executive  and  judicial  officers  of  a  State,  or  the 
members  of  the  legislature  thereof,  is -denied  to  any  of  the  male  in- 
habitants of  such  State,  being  twenty-one  years  of  age,  and  citizens 
of  the  United  States,  or  in  any  way  abridged,  except  for  participa- 
tion in  rebellion  or  other  crime,  the  basis  of  representation  therein 
shall  be  reduced  in  the  proportion  which  the  number  of  such  male 
citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty-one 
years  of  age  in  such  State. 

648.  Reason  for  the  Section. — In  1868  negroes  were 
denied  the  suffrage  in  nearly  all  the  States,  North  as  well 
as  South.  The  statesmen  controlling  Congress  at  that  time 
believed  that  this  was  a  situation  that  boded  ill  to  the  col- 
ored race,  especially  in  view  of  the  recent  emancipation  of 
the  slaves.  The  whites,  it  was  feared,  would  discriminate 
against  the  negroes,  and  it  was  held  to  be  the  duty  of  the 
national  government  to  see  that  they  were  protected  in . 
their  civil  rights.  According  to  American  ideas,  the  direct 
road  to  such  protection  is  the  right  of  voting.  But  the  reg- 
ulation of  the  suffrage  had  always  belonged  to  the  States; 
there  was  also  a  widespread  prejudice  against  conferring  it 
on  colored  men  at  all.  So  this  clause  was  devised,  in  the 
expectation  that  the  Southern  States,  rather  than  submit  to 
a  large  reduction  of  their  representation  in  the  House  of 
Representatives  and  in  the  electoral  college,  would  grant 
the  suffrage  to  colored  men.  The  clause  offered  the  South- 
ern Statds  a  strong  political  inducement  to  give  the  negro 
the  vote ;  not  one  of  them   complied  with  the  condition ; 


SLAVERY  AND  RECONSTRUCTION.       365 

but  as  the  next  apportionment  of  Representatives  was  not 
made  until  Amendment  XV.  had  been  declared  in  force,  the 
clause  has  never  had  the  slightest  effect.  Nor  is  the  first 
sentence  of  the  section  anything  more  than  a  formal  declara- 
tion of  the  rule  of  apportionment  since  the  three-fifths  rule 
ceased  to  operate. 

Section  3. — No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  elector  of  President  and  Vice  President,  or  hold  any 
office,  civil  or  military,  under  the  United  States,  or  undf r  any  State, 
who,  having  previously  taken  an  oath,  as  a  member  of  Congress,  or 
as  an  officer  of  the  United  States,  or  as  a  member  of  any  State  legis- 
lature, or  as  an  executive  or  judicial  officer  of  any  State,  to  support 
the  Constitution  of  the  United  States,  shall  have  engaged  in  insur- 
rection or  rebellion  against  the  same,  or  given  aid  or  comfort  to  the 
enemies  thereof.  But  Congress  may,  by  a  vote  of  tv^ro  thirds  of  each 
house,  remove  such  disability. 

649.  Object  of  the  Section. — The  effect  of  this  section 
was  to  put  the  political  and  military  leaders  of  the  Southern 
Confederacy  under  a  temporary  disability  to  hold  office. 
Congress  has  often  legislated  on  the  subject.  The  general 
Amnesty  Act  passed  in  1872  removed  the  disabilities  from 
all  persons  save  Senators  and  Representatives  of  the  Thirty- 
sixth  and  Thirty-seventh  Congresses,  officers  in  the  judicial, 
military,  and  naval  service,  and  foreign  ministers.  Many 
of  these  excepted  persons,  however,  were  afterwards  re- 
lieved of  the  disabilities  by  special  acts  of  Congress.  Finally, 
in  1898,  Congress  removed  the  disabilities  from  all  persons 
on  whom  they  had  theretofore  been  imposed. 

Section  ^.— The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of  pensions 
and  bounties  for  services  in  suppressing  insurrection  or  rebellion, 
shall  not  be  questioned.  But  neither  the  United  States  nor  any  State 
shall  assume  or  pay  any  debt  or  obligation  incurred  in  aid  of  insur- 
rection or  rebellion  against  the  United  States,  or  any  claim  for  the 
loss'  or  emancipation  of  any  slave ;  but  all  such  debts,  obligations, 
and  claims  shall  be  held  illegal  and  void. 

650.  Objects  of  the  Section. — In  1866  it  was  feared  that 
efforts  might  be  made   (i)   to  repudiate  the  national  debt 


366  THE  AMERICAN  GOVERNMENT. 

created  to  carry  on  the  war;  (2)  to  pay  the  Southern 
war  debt ;  or  (3)  to  pay  for  the  slaves  that  had  been  emanci- 
pated. Hence  the  incorporation  of  the  foregoing  prohibi- 
tions in  the  Constitution. 

Section  5. — The  Congress  shall  have  power  to  enforce,  by  appro- 
priate legislation,  the  provisions  of  this  article. 

651.  Amendment  XV. — When  the  Constitution  went 
into  operation  in  1789,  persons  of  color  voted  in  several  of 
the  States,'  Subsequently  the  right  was  denied  in  nearly 
all  of  the  States,  and  this  was  the  situation  in  1866.  It 
was  soon  seen  that  the  indirect  plan  of  securing  such  per- 
sons the  suffrage  (Amendment  XIV.;  section  2),  would 
either  fail  wholly  of  accomplishing  its  purpose,  or  would  be 
a  long  time  in  doing  so.  Congress  accordingly  proposed, 
February  27,  1869,  ,a  new  amendment  to  reach  that  end 
directly.  Thirty  of  the  thirty-seven  States  having  duly 
ratified  it.  Secretary  Fish  issued  his  certificate  declaring  it 
in  force,  March  30,  1870.  This  Fifteenth  Amendment  is  in 
these  words: 

Section  i. — The  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States,  or  by  any  State,  on 
account  of  race,  color,  or  previous  condition  of  servitude. 

Section  2. — The  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 

652.  Effect  of  Amendments  XIII,-XV,— The  circumstances 
under  which  the  last  three  amendments  were  incorporated  into  the 
Constitution  were  not  favorable  to  a  careful  consideration  of  their 
real  import  and  probable  effect.  They  were  adopted  to  prevent  ex- 
isting evils,  and  how  far-reaching  they  might  prove  to  be,  was  not 
maturely  considered.  Even  those  members  of  Congress  who  agreed 
in  desiring  to  make  another  such  struggle  as  the  Civil  War  impossi- 
ble, by  no  means  agreed  as  to  the  immediate  or  ultimate  effect  of 
these  amendments.  Hence,  when  the  amendments  had  become 
parts  of  the  Constitution,  the  questions  arose  at  once:  How  far 
have  they  weakened  the  States?  How  far  have  they  strengthened 
the  Union?  These  questions  have  since  been  passed  upon,  in  their 
general  features,  by  the  United  States  Supreme  Court.  In  the 
Slaughterhouse  cases  the  court  said: 

"  We  do  not  see  in  those  amendments  any  purpose  to  disturb  the 


SLAVERY  AND  RECONSTRUCTION.       367 

main  features  of  the  general  system.  Under  the  pressure  of  all  the 
excited  feeling  growing  out  of  the  war,  our  statesmen  have  still 
believed  that  the  existence  of  the  States,  with  powers  for  domestic 
and  local  government,  including  the  regulation  of  civil  rights — the 
rights  of  person  and  property — was  essential  to  the  perfect  working 
of  our  complex  form  of  government,  though  they  have  thought 
proper  to  impose  additional  limitations  on  the  States,  and  to  confer 
additional  power  on  that  of  the   Nation."  ^ 

And  Mr.  Justice  Miller,  commenting  upon  the  decision,  has  said: 
"  The  necessity  of  the  great  powers  conceded  by  the  Constitution 
originally  to  the  federal  government,  and  the  equal  necessity  of  the 
autonomy  of  the  States  and  their  power  to  regulate  their  domestic 
aflfairs,  remain  as  the  great  features  of  our  complex  form  of  govern- 
ment." 

653.  Civil  Rights  Acts. — Soon  after  the  Thirteenth  Amend- 
ment was  declared  in  force,  Congress  passed  the  first  of  that  series  of 
acts  known  as  the  Civil  Rights  Acts,  with  a  view  "  to  protect  all  per- 
sons in  the  United  States  in  their  civil  rights."  The  last  of  these 
acts,  bearing  date  March,  1875,  declared,  section  i  : 

"That  all  persftns  within  the  jurisdiction  of  the  United  States 
shall  be  entitled  to  the  full  and  equal  enjoyment  of  the  accommoda- 
tions, advantages,  facilities,  and  privileges  of  inns,  public  convey- 
ances on  land  or  water,  theatres  and  other  places  of  public  amuse- 
ment, subject  only  to  the  conditions  and  limitations  established  by 
law,  and  applicable  alike  to  citizens  of  every  race  and  color,  regard- 
less of  any  previous  condition  of  servitude." 

The  succeeding  section  imposed  penalties  for  violations  of  the 
rights  here  enumerated,  and  prescribed  legal  remedies.  It  is  clear 
that  if  the  new  amendments  authorized  such  legislation  as  this,  then 
they  had  fundamentally  changed  the  nature  of  the  government.  But 
in  the  Civil  Rights  cases,'  decided  in  December,  1882,  the  Supreme 
Court  held  that  this  legislation  was  unconstitutional  so  far  as  it  re- 
lated to  the  States. 

654.  Amendments  Proposed  but  not  Ratified. — Of  proposed 
amendments  that  have  not  been  ratified  there  are  four.  The  first  of 
these  was  proposed  in  1789.  and  related  to  fixing  the  compensation 
of  Senators  and  Representatives:  it  is  quoted  in  a  footnote  on  page 
183.  The  second  one  was  proposed  in  1790,  and  related  to  the  appor- 
tionment of  Representatives :  it  may  be  found  on  page  150,  in  the 
footnote.  The  third  was  proposed  in  1809,  and  related  to  the  accept- 
ance  of  titles  of  nobility  and   presents  by  citizens   of  the  United 

'  16  Wallace  36. 

*  109   U.   S.    Reports  3. 


368  THE  AMERICAN  GOVERNMENT. 

States ;  it  is  quoted  on  page  242.  The  last  one,  sometimes  called 
from  its  author,  Hon.  S.  A.  Douglas,  "  the  Douglas  Amendment," 
proposed  in  1861,  was  in  these  words :  "  No  amendment  shall 
be  made  to  the  Constitution  which  will  authorize  or  give  to  Congress 
the  power  to  abolish  or  interfere,  within  any  State,  with  the  domestic 
institutions  thereof,  including  that  of  persons  held  to  labor  or  service 
by  the  laws  of  said  State." 


PART  III. 

THE  STATE  GOVERNMENTS. 


CHAPTER  XLIX. 

RELATIONS  OF  THE  STATES  TO  THE  UNION. 

•  References. 

Some  references  bearing  on  State  governments  have  been  given  in 
Part  II.  Attention  may  again  be  drawn  to  Cooley's  Constitutional 
Limitations,  which  is  the  great  authority  on  State  constitutional  law. 
For  the  rest,  it  seems  better  to  give  reference^  in  connection  with  the 
several  chapters  when  references  are  called  for. 

655.  National  Constitution  Half  a  Political  System. — 

Our  examination  of  the  federal  government  shows  very 
clearly  that  it  is  but  half  a  political  system.  No  state 
could  exist  a  day  with  such  an  imperfect  government  as 
this.  The  explanation  of  what  might  strike  a  foreigner  as 
a  strange  anomaly,  is  that  the  important  powers  that  the 
Constitution  omits  had  already  been  intrusted  to  a  series  of 
secondary  jurisdictions  called  the  States. 

656.  The  Union  Dependent  on  the  States. — The  Con- 
stitution of  1787  enliarged  the  sphere  of  the  national  gov- 
ernment, and  gave  it  power  to  act  directly  upon  the  people 
irrespective  of  the  States.  But  it  is  still  necessary  for 
the  States  to  assist  in  keeping  the  machinery  of  this  gov- 
ernment in  motion,  as  well  as  to  exercise  their  own  proper 
powers.  The  Constitution  assumes :  ( i )  that  the  legis- 
latures will  fix  qualifications  for  the  electors  of  Representa- 
tives: (2)  that  the  States  will  conduct  or  manage  the  elec- 

AM.  GOV. — 24  (369) 


370  THE  AMERICAN  GOVERNMENT. 

tions  of  Representatives;  (3)  that  the  legislatures  will 
elect  Senators";  and  (4)  that  each  State  will  appoint  presi- 
dential electors.  Plainly,  if  the  States  should  fail  to  per- 
form these  duties,  or  any  of  them,  the  national  system 
would  fall  into  ruins.  Here  the  national  government  has 
no  coercive  power  whatever.  Hence  the  State  govern- 
ments are  part  and  parcel  of  the  national  government; 
or,  as  Judge  Jameson  puts  it,  "  The  constitutions  of  all 
the  States  form  a  part  of  the  constitution  of  the  United 
States."  ^ 

657.  Proper  State  Sphere. — But,  important  as  are  the 
national  functions  performed  by  the  State,  they  do  not  de- 
termine the  proper  State  sphere,  but  are  only  incidental 
and  secondary.  The  real  sphere  of  the  State  is  the  exer- 
cise of  those  powers  of  government  which  are  not  delegated 
to  the  Nation  or  forbidden  to  the  State.  These  powers 
have  been  treated  with  some  neglect  both  by  practical 
politicians  and  by  sUidents  of  political  science.  The  causes 
are  obvious :  in  the  division  of  powers  made  by  the  national 
Constitution,  the  more  imposing  ones  were  assigned  to  the 
Nation,  the  less  imposing  to  the  States ;  National  politics 
have  grown  at  the  expense  of  State  politics ;  Washington  is 
a  larger  political  theater  than  Albany  or  Columbus. 

658.  Relations  of  the  Citizen  to  the  Tv^ro  Jurisdictions. 
— Important  as  the  powers  of  the  Nation  are,  the  com- 
mon citizen,  in  time  of  peace,  has  few  relations  with  it  out- 
side of  the  Post  Office  Department,  while  his  relations 
with  the  State  are  numerous  and  constant. 

Said  President  Garfield  in  187 1 :  "  It  will  not  be  denied  that  tbe 
State  government  touches  the  citizen  and  his  interests  twenty  times 
where  the  national  government  touches  him  once.  For  the  peace 
of  our  streets  and  the  health  of  our  cities ;  for  the  administration  of 
justice  in  nearly  all  that  relates  to  the  security  of  person  and  prop- 
erty, and  the  punishment  of  crime ;  for  the  education  of  our  children, 
and  the  care  of  unfortunate  and  dependent  citizens ;  for  the  collec- 
tion and  assessment  of  much  the  larger  portion  of  our  direct  taxes, 


*  The  Constitutional  Convention,  pp.  87, 


RELATIONS  OF  THE  STATES  TO  THE  UNION.    371 

and  for  the  proper  expenditure  of  the  same — for  all  this,  and  much 
more,  we  depend  upon  the  honesty  and  wisdom  of  our  General  As- 
sembly [of  Ohio],  and  not  upon  the  Congress  at  Washington."' 

Mr.  Woodrow  Wilson,  discussing  the  same  subject,  says  the  twelve 
greatest  subjects  that  occupied  the  public  mind  of  England  in  the 
nineteenth  century  were  Catholic  emancipation,  Parliamentary  re- 
form, the  abolition  of  slavery,  the  amendment  of  the  poor  laws,  the 
reform  of  municipal  corporations,  the  repeal  of  the  corn  laws,  the 
admission  of  the  Jews  to  Parliament,  the  disestablishment,  of  the 
Irish  Church,  the  alteration  of  the  Irish  land  laws,  the  establishment 
of  national  education,  the  introduction  of  the  ballot,  and  the  reform 
of  the  criminal  law.  And  all  of  these  except  the  corn  laws  and  the 
abolition  of  slavery  would  have  been,  under  our  systiem,  so  far  as  they 
could  be  dealt  with  at  all,  subjects  for  State  regulation  exclusively.* 


*  Works,  Vol.  I.,  p.   733. 

*  The  State,  p.  487- 


CHAPTER  L. 

STATE  CONSTITUTIONS. 

References. 

Jameson,  The  Constitutional  Convention,  particularly  Chap.  IV.; 
Hitchcock,  American  State  Constitutions;  Poore,  The  Federal  and 
State  Constitutions,  etc. 

The  origin  of  State  constitutions  was  treated  in  Chapter 
IV.  More  definitely,  the  following  topics  were  considered; 
Independence,  the  Colonies  Reorganized  as  States,  the  First 
Constitutions,  Source  of  the  New  Constitutions,  Models  of 
the  New  Constitutions,  the  Transition  from  Colony  to  State. 
Only  one  of  these  topics  calls  for  fuller  treatment. 

659.  The  First  Constitutions. — The  first  State  consti- 
tutions were  framed  by  State  conventions  and  congresses, 
some  of  them  composed  of  members  of  the  legislatures,  and 
some  of  them  composed  of  men  especially  elected  for  that 
purpose.  The  constitution  of  Massachusetts  was  the  only 
one  submitted  to  the  people  for  ratification.  Connecticut 
and  Rhode  Island,  finding  the  charters  granted  by  Charles 
11.  in  1662  and  1663,  sufficient  for  their  purposes,  did  riot 
frame  constitutions  until  18 18  and  1842. 

The  following  are  the  dates  of  the  constitutions  of  the 
eleven  other  States :  ^ 

New  Hampshire,  January  5,  1776.  Maryland,  November  11,  1776. 

South  Carolina,  March  26,  1776.  North     Carolina,     December     18, 
Virginia,  June  26,  1776.  1776. 

New  Jersey,  July  3,  1776.  Georgia,  February  5,  1777. 

Delaware,  September  21,  1776.  New  York,  April  20,  1777. 

Pennsylvania,  September  28,  1776.  Massachusetts,  June  15,  1780. 


*  With  a  single  exception,  the  above  dates  are  given   on   the  authority  of 
Poore.     He  does  not  tell  us  when  the    constitution  of  Massachusetts  took  effect. 

(372) 


STATE  CONSTITUTIONS.  373 

Hastily  formed  as  most  of  these  constitutions  were,  and 
the  first  of  their  kind,  it  would  have  been  strange  indeed  if 
some  of  them  had  not  proved  to  be  very  defective.  Such 
was  the  case.  The  pubhc  dissatisfaction  is  shown  by  the 
early  action  of  States  either  to  amend  their  constitutions  or 
to  form  new  ones.  South  Carolina  adopted  a  new  one  in 
1778,  New  Hampshire  in  1784,  Delaware  in  1792,  Georgia 
in  1798,  Pennsylvania  in  1792,  while  Maryland  amended 
hers  the  next  year  after  its  adoption.  Measured  by  this 
test,  the  constitution  of  Massachusetts  was  the  most  nearly 
perfect  of  all ;  it  was  not  amended  until  1820  and  is  still  in 
force.  New  York  adopted  a  second  constitution  in  1801, 
Virginia  in  1830,  North  Carolina  in  1834,  New  Jersey  in 
1844. 

660.  The  Later  Constitutions. — As  a  class,  the  later 
constitutions  differ  from  the  earlier  ones  in  several  features, 
of  which  the  following  may  be  particularized: 

1.  They  are  framed  by  constitutional  conventions,  or 
constituent  assemblies,  duly  convoked  and  elected  for  that 
purpose.    The  first  constitutions  were  all  revolutionary  acts. 

2.  They  are  usually  submitted  to  the  people  for  ratifica- 
tion by  a  popular  vote. 

3.  They  are  much  more  elaborate  and  complete.  This 
is  partly  due  to  the  increased  complexity  of  government 
growing  out  of  the  increased  complexity  of  society.  For 
the  rest,  it  may  be  attributed  to  popular  jealousy  of  author- 
ity, and  to  a  desire  so  to  limit  and  qualify  the  powers  of 
government  as  to  prevent  abuses. 


The  following  information  is  furnished  by  the  Office  of  the  Attorney-General 
of  that  State.  A  constitution  framed  by  the  General  Court  of  1777-78,  acting 
as  a  constituent  assembly,  was  submitted  to  the  people  and  rejected.  In  Sep- 
tember, 1779,  a  convention  of  delegates  chosen  by  the  people  met  at  Cambridge 
for  the  purpose  of  drafting  a  constitution;  it  seems  to  have  adjourned  in 
November,  and  then  to  have  met  March  2,  1780,  when  it  passed  a  resolution 
submitting  to  the  people  the  draft  of  constitution  that  had  been  drawn  up. 
Between  that  date  and  June  14  following,  an  election  was  held;  and  on  the 
iSth  of  that  month  the  convention  resolved  "that  the  people  of  the  State  of 
Massachusetts  Bay  have  accepted  the  constitution  as  it  stands  in  the  printed 
form  submitted  to  their  revision."  I  have  assumed  that  the  constitution  took 
effect  with  the  adoption  of  this  resolution. 


374  THE  AMERICAN  GOVERNMENT. 

66 1.  Amendments. — The  State  constitutions  make  pro- 
vision for  their  own  amendment.  This  involves  the  two 
steps  of  proposal  and  ratification.  The  first  step  is  usually 
taken  by  the  legislature ;  in  some  States  a  majority,  in 
some  three  fifths,  and  in  some  two  thirds  of  all  the  mem- 
bers-elect are  necessary  for  this  purpose.  A  few  States  re- 
quire the  concurrence  of  two  successive  legislatures.  As 
a  rule,  the  ratification  is  by  the  popular  vote ;  in  some  States 
a  majority  of  all  the  votes  cast  at  the  election  is  required ; 
in  some,  a  majority  of  those  cast  on  this  particular  question 
suffices.  In  Delaware  the  ratification  is  given  by  the  legis- 
lature succeeding  the  one  that  proposed  the  amendment. 
The  legislature  of  New  Hampshire  cannot  propose  amend- 
ments, but  it  may  submit  to  the  people  the  question  of  call- 
ing a  convention  to  do  so. 

662.  Constitutional  Conventions. — Many  of  the  consti- 
tutions provide  for  calling  constitutional  conventions.  Some 
legislatures  are  required  to  submit  that  question  to  the 
people  at  stated  periods:  in  New  Hampshire,  once  in  7 
years;  in  Iowa,  once  in  10;  in  Michigan,  once  in  16;  and 
in  New  York,  Ohio,  and  Maryland  once  in  20.  All  con- 
stitutions framed  by  such  conventions,  and  all  amendments 
proposed  by  them,  as  well  as  those  proposed  by  legisla- 
tures, must  then  be  subjected  to  the  constitutional  method 
of  ratification. 

663.  Limitations  of  the  State  Governments. — As  stated 
in  Chapter  XII.,  the  State  governments  possess  inherent 
powers ;  the  federal  government,  delegated  powers.  It  must 
also  be  borne  in  mind  that  the  American  people  did  four 
things  when  they  ordained  the  national  Constitution:  they 
delegated  certain  powers  of  government  to  the  Union ;  pro- 
hibited certain  powers  to  the  Union ;  prohibited  certain 
powers  to  the  States ;  reserved  all  powers  that  they  had 
not  delegated  to  the  Union,  or  prohibited  to  the  States,  to 
the  States,  or  the  people, —  thus  making  the  States  their 
residuary  legatees.  Still  it  must  not  be  supposed  that  the 
State"  governments    possess    or   exercise    all   the   reserved 


STATE  CONSTITUTIONS.  375 

powers.  The  reservation  is  made  to  the  people  of  the 
States,  not  to  the  State  governments ;  and  the  people,  in 
the  State  constitutions,  deny  such  reserved  powers  to  their 
State  governments  as  they  see  fit.  From  the  first,  the  peo- 
ple have  withheld  powers  from  the  governments  that  they 
have  constituted,  and  in  later  years  they  have  withheld 
more  such  powers  than  formerly.  Thus,  the  States  might 
establish  State  churches,  deny  to  citizens  the  right  of  peti- 
tion, or  the  right  to  bear  arms,  and  unduly  limit,'  or  even 
deny,  the  right  of  trial  by  jury;  but  the  State  constitutions 
carefully  guard  these  points  and  many  more  besides.  For 
example,  the  Pennsylvania  bill  of  rights  closes  with  this 
declaration :  "  To  guard  against  transgression  of  the  high 
powers  which  we  have  delegated,  we  declare  that  every- 
thing in  this  article  is  excepted  out  of  the  general  powers 
of  government,  and  shall  forever  remain  inviolate." 

664.  Scope  of  the  Present  Inquiry. — It  is  neither  possi- 
ble nor  desirable  in  the  present  work  to  examine  in  detail 
all  the  forty-five  State  constitutions,  or  even  any  one  of 
them.  The  full  discussion  of  the  national  Constitution  ren- 
ders that  superfluous.  A  general  statement  of  the  nature 
and  operation  of  the  State  governments,  with  some  account 
of  the  principal  variations,  will  amply  suffice  for  the  present 
purpose. 

665.  Three  Departments. — The  States  all  preserve  the 
old  three-fold  division  of  governmental  powers  and  depart- 
ments, and  it  constitutes  the  main  framework  of  their  con- 
stitutions. The  national  Constitution,  by  devolving  certain 
duties  upon  the  legislatures  and  governors,  makes  this  three- 
fold division  necessary ;  a  State  without  it  would  not  have  a 
republican  form  of  government  within  its  meaning. 

666.  Assumptions  of  the  Constitution. — The  national 
Constitution  assumes,  and  so  indirectly  ordains,  various 
features  of  the  State  governments.  Moreover,  by  assuming 
the  existence  of  these  features  and  by  devolving  upon  legis- 
latures, governors,  and  judges  certain  definite  duties,  the 
Constitution  makes  them,  de  fa€to,  a  part  of  the  machinery 


376  THE  AMERICAN  GOVERNMENT. 

of  the  national  government,  and  so  declares,  by  implication, 
that  they  shall  continue.  No  State,  therefore,  could  abolish 
its  legislature,  governor,  or  courts  of  law.  To  do  so  would 
bring  it  into  collision  with  the  national  authority.  And  this 
also  is  a  pledge  that  the  government  of  every  State  must  be 
republican. 

667.  Bills  of  Rights. — Most  if  not  all  of  the  State  con- 
stitutions contain,  frequently  as  a  preface,  a  series  of  proposi- 
tions bearing  the  name,  Bill  of  Rights,  or  at  least  answering 
to  this  description.  The  practice  dates  from  Revolution- 
ary times,  as  has  been  explained  in  a  previous  chapter. 
Some  of  these  propositions  are  merely  general  political  max- 
ims, or  abstract  statements  of  rights,  first  copied  from  their 
English  prototypes,  but  many  of  them  are  special  and  con- 
crete. It  is  in  these  bills  that  many  of  the  limitations  im- 
posed by  the  people  of  the  States  upon  their  governments 
are  enumerated.  Mr.  Bryce  observes,  and  very  properly,  a 
growing  tendency  on  the  part  of  the  people  to  place  less 
reliance  upon  general  maxims,  and  more  reliance  upon 
specific  declarations. 

668.  Fluctuations  of  State  Constitutional  Law.' — Upon  the 
whole,  the  State  constitutions  have  proved  to  be  much  less  fixed  and 
stable  than  the  Federal  Constitution.  In  i860  there  were  34  States ; 
and  only  5  of  the  number,  none  more  than  15  years  old,  still  re- 
tained their  first  constitutions  unchanged.  All  the  others  had  not 
indeed  thrown  aside  their  first  constitutions,  but  they  had  all  either 
thrown  them  aside  or  subjected  them  to  more  or  less  amendment, 
and  often  to  repeated  amendment.  Up  to  that  time  6g  complete  con- 
stitutions and  loi  different  sets  of  amendments  had  been  promul- 
gated. From  i860  to  1886  the  new  constitutions  were  35,  including  the 
first  ones  of  4  new  States ;  and  the  number  of  amendments,  longer 
and  shorter,  counting  as  one  amendment  whatever  was  adopted  at  one 
time,  were  114.  In  other  words,  from  1776  to  1886  we  count  104  com- 
plete constitutions  and  215  amendments.  This  is  not  counting  consti- 
tutions and  amendments  proposed  that  failed  to  receive  ratification. 
In  the  last  ten  years  of  the  period,  6  complete  constitutions  and  28 


'  Jameson,  The  Constitutional  Convention,  Chap.  VII.;  Hitchcock,  American 
State  Constitutions,  pp.  15-17;  Bryce,  The  American  Commonwealth,  Vol.  I., 
pp.   456,   457. 


STATE  CONSTITUTIONS.  377 

amendments  were  rejected  by  the  popular  vote.  Previous  to  1873,  as 
many  as  152  conventions  had  sat  for  the  purpose  of  framing,  devising, 
or  ratifying  constitutions.  Seven  new  States  have  been  admitted  to 
the  Union  since  1886;  several  of  the  old  States  have  adopted  new 
constitutions,  and  many  more  have  adopted  amendments,  so  that  the 
process  of  elaborating  State  constitutional  law  shows  no  sign  of 
coming  to  an  end.  It  must  be  said  that  this  process  goes  on  much 
more  rapidly  in  some  sections  of  the  country  than  in  others.  This  is 
particularly  true  of  the  South  and  West.  Louisiana,  Georgia,  South 
Carolina,  and  Virginia  have  each  had  6  constitutions ;  Pennsylvania, 
New  York,  and  Delaware,  4 ;  Illinois,  3 ;  Ohio,  Michigan,  New 
Hampshire,  and  Vermont,  2;  Rhode  Island,  Connecticut,  Maine  and 
Massachusetts,  l.  Still,  some  of  the  constitutions  that  have  stood 
longest  have  been  considerably,  and  often  materially,  changed  by 
amendment.  The  causes  of  this  continued  flux  of  State  constitutional 
law  are  not  far  to  seek.  The  State  constitutions  are  regarded  with 
much  less  reverence  than  the  Federal  Constitution;  the  machinery 
that  is  provided  for  their  amendment  is  much  less  cumbersome  and 
much  more  easily  operated ;  and  State  opinion  often  depends  directly 
upon  new  communities  or  communities  where  society  has  never  as- 
sumed as  regular  and  settled  a  form  as  it  has  in  the  whole  country 
taken  together. 

The  increasing  size  of  the  State  constitutions  is  well  shown  by  the 
ampunt  of  space  that  they  occupy  in  Poore's  ample  pages.  Four 
constitutions  of  Virginia,  beginning  with  1776  and  ending  with  1870, 
occupy  4,  7,  18,  and  22  pages  each.  Pennsylvania  has  grown  from  8 
pages  to  23 ;  Texas,  from  10  to  24 ;  Illinois,  from  10  to  25.  The  New 
Hampshire  constitution  of  1776  contains  600  words;  those  of  Mis- 
souri and  South  Dakota  at  the  present  time,  26,000  words. 


CHAPTER  LI.      • 
THE  STATE  LEGISLATURES. 

669.  Names. — The  'Legislature  is  the  name  generally 
applied  to  the  lawmaking  body  of  the  State,  but  this  is  not 
always  the  constitutional  name.  In  New  Hampshire  and 
Massachusetts,  it  is  called  the  General  Court;  in  North 
Dakota,  Montana,  and  Oregon,  the  Legislative  Assembly; 
in  about  half  of  the  remaining  States,  the  Legislature;  and 
in  the  other  half,  the  General  Assembly. 

670.  Names  of  the  Two  Houses. — In  Georgia  from 
1777  to  1789,  in  Pennsylvania  from  1776  to  1790,  and  in 
Vermont  from  its  admission  into  the  Union  to  1836,  the 
legislature  consisted  of  a  single  house.  But  these  are  the 
only  exceptions  to  the  prevalence  of  the  bicameral  system. 
In  all  the  States  the  upper  house  is  called  the  Senate.  In 
Maryland,  Virginia,  and  West  Virginia,  the  lower  house  is 
the  House  of  Delegates ;  in  California,  Nevada,  New  York, 
and  Wisconsin,  the  Assembly;  in  New  Jersey,  the  General 
Assembly;  and  in  all  the  other  States  of  the  Union,  the 
House  of  Representatives.  Previous  to  1868  North  Caro- 
lina called  her  lower  house  the  House  of  Commons. 

671.  Terms  of  Senators  and  Representatives. — In 
Massachusetts  and  Rhode  Island,  the  senatorial  term  is  one 
year ;  in  New  Jersey,  three  years ;  in  Maine,  New  Hamp- 
shire, Vermont,  Connecticut,  New  York,  North  Carolina, 
Georgia,  Tennessee,  Ohio,  Michigan,  Nebraska,  South 
Dakota,  and  Idaho,  two  years.  In  the  remaining  States,  it 
is  four  years.  In  Massachusetts,  Rhode  Island,  New  York, 
New  Jersey,  the  representatives  hold  one  year;  in  Alabama, 
Louisiana,  Mississippi,  four  years;  in  the  other  States  two 
years. 

(378) 


THE  STATE  LEGISLATURES.  379 

672.  Pay  of  Senators  and  Representatives. — In  all 
cases  the  pay  is  the  same  for  members  of  both  houses. 
Sometimes  it  is  fixed,  or  at  least  the  maximum,  by  the  con- 
stitution, but  commonly  by  law.  It  is  three  dollars  a  day 
and  mileage  at  ten  cents  a  mile,  going  and  coming,  in  Ver- 
mont and  Michigan,  and  $150  a  session  and  mileage  at  ten 
cents  a  mile,  in  Maine;  from  these  amounts  it  ranges  to 
$1,500  a  year  and  mileage  at  ten  cents  a  mile,  in  New  York. 

673.  The  Number  of  Members. — The  number  of  mem- 
bers varies  widely  in  the  different  States.  It  is  either  fixed 
by  the  State  constitution,  or  it  results  from  the  application, 
of  a  rule  that  the  constitution  prescribes.  The  number  of 
senators  varies  from  17  in  Delaware  and  Nevada  to  63  in 
Minnesota;  the  number  of  representatives  from  35  in  Dela- 
ware to  about  400  in  New  -Hampshire ;  under  her  present 
constitution,  the  State  of  New  York  has  50  senators  and  150 
assemblymen. 

674.  Apportionment. — The  rule  that  is  followed  in  the 
apportionment  of  members  of  the  houses  of  the  legislature 
depends  on  population,  but  population  as  limited  by  town 
and  county  lines.  In  apportioning  senators  much  closer  at- 
tention is  paid  to  such  lines  than  in  apportioning  representa- 
tives. The  widest  departure  from  this  rule  is  in  Vermont, 
where  representatives  have  always  been  distributed  among 
the  towns  equally,  while  senators  are  assigned  to  the  coun- 
ties according  to  their  numbers.  First  constitutions  always 
contain  an  apportionment  of  representatives,  and  often  later 
ones ;  and  all  the  constitutions,  with  the  exception  of  Dela- 
ware, provide  for  a  periodical  redistribution  of  members. 
Very  definite  rules  relating  to  the  matter  are  prescribed,  and 
their  application  is  enjoined  upon  some  constituted  State 
authority. 

The  common  practice  is  to  intrust  this  duty  to  the  legislature,  but 
in  Maryland  it  is  given  to  the  governor,  and  in  Ohio  to  the  gov- 
ernor, auditor,  and  secretary  of  state.  Most  of  the  States  provide 
for  a  new  distribution  following  each  national  census.  Oregon,  Wis- 
consin, Michigan,  Minnesota,  and  some  other  States,  which  have 
intercalary  State  censuses,  provide  for  it  once  in  five  years. 


380  THE  AMERICAN  GOVERNMENT. 

675.  Representative  Population. — The  representative 
population  differs  in  different  States.  In  some  it  is  the  total 
population  as  enumerated;  in  some,  the  total  excluding 
aliens;  in  some,  the  total  excluding  Indians  not  taxed;  in 
some,  the  total  excluding  Indians  not  taxed  and  aliens; 
in  some,  the  total  excluding  aliens  incapable  of  naturaliza- 
tion, as  the  Chinese  in  California ;  and  in  a  few,  the  voters. 

676.  Districting  the  State. — Generally  some  civil  divi- 
sion already  existing  is  adopted  as  a  unit,  as  the  county  in 
the  Middle  and  Western  States,  and  both  the  county  and  the 
town  in  New  England.  As  it  is  not  deemed  desirable  that 
the  members  of  the  two  houses  should  have  just  the  same 
constituents,  the  representative  and  senatorial  districts  do 
not  commonly  coincide.  The  factors  to  be  considered  in 
establishing  the  two  districts  are,  the  number  of  members 
to  be  distributed,  population,  existing  civil  divisions,  and 
the  representation  of  fractions. 

The  common  rule  is  to  fix  in  the  constitution  maximum  and  mini- 
mum numbers  for  each  house,  leaving  a  discretionary  power  to  the 
legislature  within  these  limits.  In  such  cases  the  legislature  or- 
dinarily first  fixes  the  number  of  members,  then  determines  the  ratio 
of  representation  by  dividing  the  population  by  this  number,  and 
finally  establishes  the  districts  with  reference  to  the  quotient.  This 
is  the  method  employed  by  Congress  in  apportioning  national  Repre- 
sentatives, except  that  Congress  leaves  the  districting  to  the  State 
legislatures.  A  few  State  constitutions,  however,  fix  ratios  of  rep- 
resentation, and  direct  that  these  ratios  shall  be  applied  to  the  popu- 
lation to  ascertain  the  size  of  the  houses  by  division. 

Most  of  the  constitutions  give  the  State  authority  charged  with 
the  duty  of  apportionment,  power  to  group  counties  when  necessary ; 
while  they  also  deny  or  limit  power  to  divide  the  civil  division 
adopted  as  the  unit.  With  a  view  to  preventing  the  aggregation  of 
too  much  political  power  at  one  point,  most  of  the  States  having  large 
cities  limit  the  number  of  representatives  assigned  to  them  by  requir- 
ing a  larger  population  than  in  other  parts  of  the  State.  Several 
States  assign  to  each  county  at  least  one  representative ;  while  New 
Jersey  and  South  Carolina  assign  one  senator  to  each  county.  The 
representation  of  fractions  is  duly  provided  for;  but  that  subject, 
which  is  quite  technical,  need  not  be  considered  here. 

677.    Legislative  Sessions. — The  constitutions  of  Massa- 


THE  STATE  LEGISLATURES.  381 

chusetts,  Rhode  Island,  New  York,  New  Jersey,  Georgia, 
and  South  Carolina  provide  for  annual  sessions ;  the  consti- 
tution of  Alabama  for  quadrennial  sessions ;  the  constitu- 
tions of  the  other  States  for  biennial  sessions.  In  Ohio, 
however,  the  custom  of  the  successive  General  Assemblies 
long  was  to  hold  an  adjourned  session,  but  it  has  now  been 
abandoned.  The  governors  of  the  States  may  call  special 
sessions  when  in  their  judgment  occasion  for  them  arises. 

678.  Length  of  Sessions. — Some  of  the  States,  as 
Maine,  New  Hampshire,  Massachusetts,  Connecticut,  New 
York,  New  Jersey,  Ohio,  Wisconsin,  and  Texas,  have  left 
the  length  of  the  session  wholly  to  the  discretion  of  their  leg- 
islatures. In  other  States  the  length  is  limited  by  the  con- 
stitution, the  limit  ranging  from  40  to  90  days. 

679.  Powers  of  the  Separate  Houses. — The  powers  of 
the  separate  houses  of  the  State  legislatures  are  practically 
the  same  as  the  powers  possessed  separately  by  the  houses 
of  Congress. 

1.  They  are  the  judges  of  the  qualifications,  elections, 
and  returns  of  their  own  members. 

2.  They  choose  their  own  officers,  except  that  the  lieu- 
tenant governor  in  States  having  such  an  officer  is  the  con- 
stitutional president  of  the  Senate. 

3.  The  House  of  Representatives  has  the  sole  power  of 
impeachment,  while  the  Senate  is  the  trial  court.  Some 
States,  however,  associate  members  of  the  judiciary  with  the 
Senate  in  the  trial  of  such  cases ;  for  instance,  the  constitu- 
tion of  New  York  constitutes  the  president  of  the  Senate, 
the  senators,  or  a  major  part  of  them,  and  the  judges  of  the 
Court  of  Appeals,  or  a  major  part  of  them,  such  a  court. 

680.  Legislative  Povi^ers. — The  powers  of  legislation 
that  are  reserved  to  the  States,  or  to  the  people,  are  far  more 
numerous  than  those  delegated  to  Congress.  Still,  the 
State  legislature  by  no  means  possesses  all  these  reserved 
powers.  The  people  prohibit  the  legislature  to  exercise 
powers  that  they  wish  to  retain  in  their  own  hands.  There 
is  no  express  delegation  of  power.     No  State  constitution 


382  THE  AMERICAN  GOVERNMENT. 

contains  such  a  section  as  number  8,  Article  L,  of  the  na- 
tional Constitution,  "  Congress  shall  have  power,"  followed 
by  an  enumeration  of  the  principal  .powers  of  legislation 
delegated.     Such  of  the  reserved  powers  as  are  not  denied  • 
them,  the  legislatures  may  exercise. 

681.  Legislative  Powers  Reserved. — The  powers  de- 
nied to  the  legislature  differ  in  different  States.  However, 
all  the  States  that  have  adopted  new  constitutions  in  recent 
years  have  shown  an  increasing  jealousy  of  the  legislative 
branch  of  the  government.  Montana  provides  that  the  Leg- 
islative Assembly  shall  not  pass  local  or  special  laws  on  any 
of  more  than  thirty  enumerated  subjects.  The  constitution 
of  Ohio  says :  "  All  laws  of  a  general  nature  shall  have  a 
uniform  operation  throughout  the  State."  The  purpose  of 
such  provisions  is  to  prevent  the  evils  growing  out  of  special 
legislation.  On  some  subjects  the  legislature  is  not  allowed 
to  act  at  all. 

682.  Modes  of  Legislation. — While  provisions  relating 
to  modes  of  legislation  are  commonly  much  more  minute 
than  those  found  in  the  national  Constitution,  State  modes 
of  legislation  do  not  widely  differ  from  those  followed  in 
Congress.  Some  constitutions  prescribe  that  bills  on  all 
subjects  may  originate  in  either  house;  others,  that  bills  for 
raising  revenue  must  originate  in  the  lower  house.  Some 
provide  that  all  legislation  must  be  by  bill ;  others  are  silent 
on  this  point.  It  is  common  to  specify  that  no  bill  shall  re- 
late to  more  than  one  subject,  and  that  this  shall  be  distinctly 
stated  in  the  enacting  clause.  Enacting  clauses  are  of  dif- 
ferent forms.  In  Ohio  it  is:  "  Be  it  enacted  by  the  General 
Assembly  of  the  State  of  Ohio ; "  in  Michigan :  "  The  peo- 
ple of  the  State  of  Michigan  enact ; "  in  New  York :  "  The 
people  of  the  State  of  New  York,  represented  in  Senate  and 
Assembly,  do  enact,"  etc. 

683.  Enacting  Laws. — The  rules  regulating  the  pas- 
sage of  laws  are  established  by  the  constitution.  Sometimes 
a  majority  of  a  quorum  suffices  to  carry  a  measure,  but  com- 
monly a  majority  of  all  the  members  elected  to  each  house 


THE  STATE  LEGISLATURES.  383 

is  necessary.  In  two  States,  Rhode  Island  and  North  Caro- 
lina, the  action  of  the  legislature  alone  is  sufficient  for  the 
enactment  of  laws,  as  they  have  never  given  their  governors 
the  veto  power.  Several  other  States  conferred  such  power 
at  comparatively  a  late  date  in  their  history:  Connecticut, 
1818;  Maryland  and  South  Carolina,  1867;  Tennessee  and 
Virginia,  1870;  West  Virginia,  1872;  Delaware,  1897; 
Ohio,  1903. 

All  but  two  of  the  States  require  bills,  and  a  majority  of  States 
joint  resolutions  also,  to  be  sent  to  the  governor  for  his  approval  be- 
fore they  become  laws.  The  rules  relating  to  the  subject  are  very 
minute  and  cannot  be  summarized.  New  York  in  the  years  1777- 
1821  intrusted  the  veto  to  the  governor,  chancellor,  and  judges  of  the 
supreme  court.  Illinois,  1818-1848,  gave  the  same  power  to  the 
governor  and  supreme  judges.  In  Vermont,  previous  to  1838,  the 
governor  and  council  could  suspend  a  law  until  the  following  session 
of  the  legislature.  The  governors  of  New  York  and  some  other 
States  can  approve  some  portions  of  bills  and  veto  other  portions. 
The  governors  of  several  States  are  empowered  to  approve  or  veto 
bills  within  a  certain  specified  time  after  the  legislature  that  passed 
them  has  adjourned,  and  in  such  cases  rejection  of  a  bill  is  final. 


CHAPTER  LII. 
THE  STATE  EXECUTIVES. 

684.  Vesting  the  Executive  Power.^Most  of  the 
States  vest  the  supreme  executive  power  in  the  govern- 
or, but  some  vest  it  in  the  governor,  Heutenant  governor, 
and  the  heads  of  certain  enumerated  departments.  But 
this  distinction  is  more  in  name  than  in  fact,  as  we  shall 
soon  see. 

685.  Elections,  Terms,  and  Salaries. — The  State  con- 
stitution usually  regulates  the  election  and  the  term  of  the 
governor,  and  often  the  salary  also ;  but  some  details  are 
commonly  left  to  the  laws.  The  States  present  a  consider- 
able variety  of  provisions  relating  to  these  subjects.  Most 
of  them  hold  their  elections  on  the  day  fixed  by  Congress  for 
the  election  of  national  representatives,  Tuesday  after  the 
first  Monday  of  November.  In  most  States  a  plurality  of 
the  votes  cast  suffices  for  an  election,  but  a  few  require  a 
majority.  In  the  latter  case,  when  the  people  fail  to  elect, 
the  legislature  chooses  one  of  the  candidates  voted  for.  In 
all  the  States  holding  gubernatorial  elections  in  November, 
the  term  begins  on  or  near  the  first  Monday  of  January  fol- 
lowing. 

In  Massachusetts  and  Rhode  Island  the  term  is  one  year;  in  New 
Jersey,  three  years;  in  Alabama,  California,  Delaware,  Florida,  Illi- 
nois, Indiana,  Kentucky,  Louisiana,  Maryland,  Mississippi,  Missouri, 
Montana,  Nevada,  North  Carolina,  Oregon,  Pennsylvania,  Utah,  Vir- 
ginia, Washington,  West  Virginia,  and  Wyoming,  four  years ;  in  the 
other  States,  two  years.  The  gubernatorial  salary  ranges  from  $1,500 
in  Oregon  and  Vermont  to  $10,000  in  New  York,  New  Jersey,  and 
Pennsylvania. 

686.  Duties  of  the  Governor. — In  general,  the  gover- 
nor's duties  are  inferior  to  those  of  the  colonial  governor, 

(384) 


THE  STATE  EXECUTIVES.  385 

who  was  a  viceregal  officer.  First  of  all,  the  governor  must 
see  that  the  laws  of  the  State  are  faithfully  executed.  He 
gives  the  legislature  information  of  the  affairs  of  the  State, 
in  a  message  at  the  beginning  of  every  session.  He  may, 
when  the  occasion  calls  for  it,  convoke  the  legislature  in 
special  session;  and  in  such  cases  he  states  in  his  message 
his  reasons  for  so  doing,  and  the  legislature,  as  a  rule,  can 
at  such  session  legislate  only  upon  the  subjects  that  he  thus 
brings  to  its  attention.  He  nominates,  and  by  and  with  the 
consent  of  the  Senate  appoints,  all  State  officers  whose  ap- 
pointment is  not  otherwise  provided  for.  He  fills  vacancies 
in  offices  occurring  in  the  recess  of  the  Senate.  Except  in 
those  States  that  have  intrusted  the  power  to  a  board  of  par- 
dons, he  grants  reprieves  and  pardons  to  convicted  offend- 
ers, except  in  cases  of  impeachment.  In  all  the  States  but 
two  he  has  a  limited  veto  on  legislation.  The  governor  is 
commander  in  chief  of  the  militia  of  the  State,  except  when 
it  is  in  the  service  of  the  United  States.  He  may  call  out  the 
militia  to  execute  the  State  laws,  to  repel  invasion,  and  to 
suppress  insurrection.  As  the  commander  of  the  militia,  he 
appoints  a  military  staff  —  adjutant^  quartermaster,  and 
commissary  generals,  and  aides-de-camp  —  and  sometimes 
also  the  higher  militia  officers.  In  some  States  the  gov- 
ernor is  clqthed  with  far  more  power  than  in  others.  His 
powers,  however,  are  by  no  means  so  extensive,  compara- 
tively, as  those  of  the  President  in  the  national  government ; 
especially  his  appointing  power  is  much  more  limited. 

687.  Executive  Departments. — Every  State  has  a  Sec- 
retary of  State,  who  keeps  the  State  records  and  has  in  his 
keeping  the  great  seal,  and  a  Treasurer,  who  is  custodian  of 
the  State  funds.  Almost  always  there  is  an  Auditor  or 
Comptroller,  whose  business  it  is  to  examine  and  audit  the 
public  accounts,  and  draw  warrants  upon  the  treasurer. 
Commonly  there  is  an  Attorney-General,  who  looks  after  the 
legal  business  of  the  State  in  the  supreme  court,  and  acts  as 
the  law  adviser  of  the  governor  and  legislature,  and  exer- 
cises some  oversight  of  the  county  law  officers.     Mention 


386  THE  AMERICAN  GOVERNMENT. 

may  also  be  made  of  the  Superintendent  of  Public  Instruc- 
tion. In  different  States  are  found  boards,  bureaus,  or 
offices  pertaining  to  lands,  immigration,  labor,  agriculture, 
education,  insurance,  railroads,  statistics,  health,  mines, 
charities,  and  pardons.  The  principal  officers  enumerated 
in  this  section  are  generally  elected  by  the  people  of  the 
State;  the  minor  officers  are  commonly  appointed  by  the 
governor  by  and  with  the  advice  and  consent  of  the  Senate ; 
a  few  are  in  some  States  elected  by  the  legislature. 

688.  Governor's  Relations  to  Heads  of  Departments. 
— The  governor's  relations  to  the  heads  of  State  depart- 
ments are  very  different  from  the  relations  of  the  President 
to  the  members  of  his  cabinet.  Rarely  has  the  governor 
anything  to  do,  more  than  any  other  citizen,  with  their  ap- 
pointment or  election.  They  do  not  necessarily  belong  to 
the  same  political  party,  and  frequently  do  not.  They  are 
elected  by  the  people,  and  are  not  responsible  to  him.  They 
may  make  their  reports  to  him,  but  only  as  a  matter  of  form. 
They  are  his  colleagues  rather  than  his  subordinates.  In 
no  sense  do  they  form  a  cabinet.  As  a  result,  the  State 
administration  is  much  less  unified  and  centralized  than  the 
National  administration. 

In  Part  I.  of  this  work  we  examined  the  councils  that  advised  the 
colonial  governors  in  the  discharge  of  their  executive  duties.  Some 
of  thdm  were  advisory  bodies  solely,  but  most  of  them  were  also 
houses  of  legislation.  Several  of  the  old  States,  and  two  or  three  of 
the  new  ones,  still  have  similar  councils,  although  the  legislative 
power  that  they  once  possessed  has  been  handed  over  to  the  State 
Senates.    These  councils  are  merely  advisory  bodies. 

689.  The  Lieutenant  Governor. — Most  of  the  States 
elect  a  Lieutenant  Governor  who  is  ex  officio  president  of 
the  Senate,  and  succeeds  to  the  office  of  governor  on  the 
occurrence  of  a  vacancy.  But  Arkansas,  Florida,  Georgia, 
Maine,  Maryland,  New  Hampshire,  New  Jersey,  Oregon, 
Tennessee,  Utah,  West  Virginia,  and  Wyoming  have  no 
officer  bearing  the  title.  In  these  States  the  Senate  elects  its 
own  president,  and  in  eight  of  them  this  president  becomes 


THE  STATE  EXECUTIVES.  .  387 

governor  in  case  of  a  vacancy.  In  Maryland  the  legisla- 
ture, if  in  session,  elects  a  governor  in  such  cases ;  otherwise 
the  president  of  the  Senate  succeeds  to  the  office.  In  Ore- 
gon the  secretary  of  state  succeeds,  and  in  Wyoming  and 
Utah  also  until  the  vacancy  is  filled  by  a:n  election. 


CHAPTER  LIII. 
THE  STATE  JUDICIARIES. 

690.  Vesting  the  Judicial  Power. — ^^Every  State  has  a 
completely  developed  judicial  system.  Sometimes  the  con- 
stitution creates  all  the  leading  features  of  the  system,  some- 
times this  is  partly  left  to  the  legislature.  The  kinds  of 
courts  are  very  similar  in  the  different  States,  but  the 
names  show  many  variations.  The  several  kinds  will  be 
briefly  described. 

691.  The  Justice's  Court. — The  court  of  the  justice  of 
the  peace  has  a  limited  jurisdiction  in  both  civil  and  crim- 
inal cases.  In  Ohio  no  civil  case  can  originate  in  this  court 
if  the  sum  in  controversy  exceeds  $100.  In  most  of  the 
other  States  the  limit  ranges  from  $100  to  $300.  The  jus- 
tice administers  penalties,  as  fines  and  imprisonment  for  petty 
offenses,  and  binds  over  for  trial  in  the  court  above,  or  com- 
mits to  jail,  persons  charged  with  crimes  beyond  his  juris- 
diction. The  city  police  magistrate  has  a  criminal  jurisdic- 
tion similar  to  that  of  the  justice  of  the  peace.  In  some 
States  the  justiice  is  appointed  by  the  governor,  but  in  most 
he  is  elected  by  the  town  or  township. 

692.  The  County  Court. — The  county  court  is  some- 
times called  the  Circuit  Court,  sometimes  the  Court  of  Com- 
mon Pleas,  and  sometimes  by  other  names.  In  respect  to 
the  amount  of  business  that  it  does,  it  is  the  most  prominent 
court  in  the  system.  It  has  an  appellate  jurisdiction  from 
the  court  below,  and  a  wide  original  jurisdiction  both  civil 
and  criminal.  Some  cities  have  a  municipal  court  of  the 
same  grade  as  the  county  court,  which  does  for  the  city 
what  the  other  does  for  the  county.  A  few  cities  have  a 
complete  system  of  courts  within  themselves.     The  county 

(388) 


THE  STATE  JUDICIARIES.  389 

and  municipal  courts  meet,  as  a  rule,  four  times  a  year,  and 
so  are  called  Courts  of  Quarter  Sessions  in  some  States. 

693.  The  Probate  Court. — The  Probate  Court  also  is  a 
county  court.  Its  principal  duties  relate  to  the  settlement 
of  the  estates  of  deceased  persons.  It  appoints  administra- 
tors and  guardians,  and  sometimes  has  a  jurisdiction  in  con- 
demning property  for  public  use.  In  some  States  it  issues 
marriage  licenses.  Some  States  have  no  Probate  Court  so- 
called,  but  intrust  probate  business  to  some  other  tribunal. 

694.  The  Superior  Court. — The  Superior  Court  is  also 
known  by  different  names.  Sometimes  it  is  called  the  Dis- 
trict Court,  sometimes  the  Circuit  Court.  The  district  or 
circuit  includes  commonly  two  or  more  counties.  Some- 
times this  court  is  composed  of  the  county  judges  of  the 
counties  embraced  in  the  district  or  circuit,  sometimes  of 
special  judges.  In  some  States  the  supreme  judges  sit  in 
this  court,  just  as  the  national  justices  of  the  Supreme  Court 
sit  in  the  national  Circuit  Court.  The  Superior  Court  has 
an  appellate  jurisdiction  from  the  county  courts,  and  an 
original  jurisdiction  as  well.  The  original  jurisdiction  of 
the  Circuit  Court  of  Ohio  is  the  same  as  the  original  juris- 
diction of  the  Supreme  Court  itself.  Some  States  have  still 
another  class  of  courts  intermediate  between  this  one  and 
the  Supreme  Court. 

695.  The  Supreme  Court. — As  the  name  imports,  the 
Supreme  Court  is  properly  the  highest  court  of  the  State. 
It  stands  to  the  State  system  in  the  same  relation  that  the 
Supreme  Court  at  Washington  stands  to  the  National  sys- 
tem. It  sits  at  certain  prescribed  times  at  the  State  capital, 
and  in  some  States  at  other  places.  Its  original  jurisdiction 
is  very  narrow,  but  its  appellate  jurisdiction  is  very  wide. 

In  13  States  the  Supreme  Court  consists  of  3  judges,  in  i  State  of 
4,  in  12  States  of  5,  in  5  of  6,  in  7  of  7,  in  i  of  9.  Their  salaries  range 
from  $2,500  in  North  Carolina  and  Nebraska  to  $10,000  in  Pennsyl- 
vania ($10,500  for  the  Chief  Justice). 

696.  Courts  of  Appeals. — In  several  other  States  the 
Supreme  Court  in  name  is  not  such  in  fact ;  there  is  still  a 


300  THE  AMERICAN  GOVERNMENT. 

higher  court  that  has  been  styled  "  the  supremest  court" 
In  New  York  and  some  other  States  this  is  called  the  Court 
of  Appeals,  and  in  New  Jersey  the  Court  of  Errors  and 
Appeals.  Louisiana  and  some  other  States  have  a  Court  of 
Appeals  below  the  Supreme  Court. 

697.  Appointment  of  Judges. — At  first  the  judges  were 
appointed  by  the  governor  and  council  in  Massachusetts, 
New  York,  and  Maryland;  in  the  other  States,  they  were 
elected  by  the  legislatures.  Now  a  great  majority  of  judges 
are  elected  by  the  popular  vote.  In  Connecticut,  Rhode 
Island,  Vermont,  and  Virginia,  the  judges  of  the  highest 
court  of  the  State  are  elected  by  the  legislature;  in  Maine, 
New  Hampshire,  and  Massachusetts,  they  are  appointed  by 
the  governor  and  council;  in  New  Jersey,  Delaware,  Mis- 
sissippi, and  Louisiana,  they  are  appointed  by  the  governor 
and  senate.  In  the  other  States  of  the  Union  the  people 
elect  them. 

698.  Tenure  of  Judges. — Early  in  the  history  of  the  re- 
public, the  common  rule  for  the  tenure  of  office  of  judges 
was  during  good  behavior.  Now,  the  supreme  judges  of 
New  Hampshire  may  serve  until  they  are  seventy  years  of 
age ;  in  Massachusetts  and  Rhode  Island,  the  term  is  life 
or  good  behavior;  in  the  other  States,  the  terms  vary  from 
two  years  in  Vermont  to  twenty-one  years  in  Pennsylvania. 

699.  Officers  of  Courts. — The  constable  who  serves  the 
processes  of  the  justice's  court,  the  sheriff  who  serves  those 
of  the  county,  district,  and  circuit  courts,  and  the  clerks  of 
the  several  courts  are  commonly  elected.  The  law  officers 
of  the  several  counties,  variously  called  State's  attorneys, 
prosecuting  attorneys,  and  county  attorneys,  are  also  elected. 
It  is  the  business  of  these  officers  to  look  after  the  legal 
business  of  the  county,  and  especially  to  see  that  violations 
of  the  criminal  laws  are  duly  punished.  They  are  also  the 
law-advisers  of  the  county  authorities. 

700.  Jurisdiction. — The  jurisdiction  of  the  State  courts, 
in  both  civil  and  criminal  cases,  is  coextensive  with  the 
State  constitution  and  laws.     Cases  arising  in  these  courts 


THE  STATE  JUDICIARIES.  391 

that  involve  federal  questions  may  be  carried  to  the  national 
courts,  as  previously  explained ;  but  with  this  exception,  the 
judiciary  of  any  State  is  independent,  and  its  determinations 
are  conclusive  and  final. 

701.  Trial  by  Jury. — In  discussing  the  national  judi- 
ciary, some  remarks  have  been  made  concerning  the  right 
of  trial  by  jury,  so  dearly  prized  by  all  English-speaking 
men.  The  State  constitutions  and  laws  differ  more  or  less 
in  details  in  relation  to  this  subject;  but  all  of  them  have 
preserved  the  grand  features  of  the  jury  system  first  built 
up  in  England,  and  then  transplanted  to  the  colonies  in  the 
seventeenth  century.  Restrictions,  limitations,  and  guaran- 
tees similar  to  those  found  in  the  national  Constitution  and 
Amendments  had  been  incorporated  into  the  State  constitu- 
tions before  the  Convention  of  1787  sat,  and  they  are  found 
in  all  of  them  to-day. 


CHAPTER  LIV. 
SUFFRAGE.  ELIGIBILITY  TO  OFFICE,  AND  ELECTIONS. 

702.  How  Fixed. — Every  State  regulates  the  qualifica- 
tions of  voters  and  officeholders  in  its  constitution  and  laws, 
except  that  Amendment  XV.  of  the  national  Constitution 
provides  that,  as  respects  voting,  no  discrimination  shall  be 
made  on  account  of  race,  color,  or  previous  condition  of 
servitude.  Formerly,  property  qualifications  were  imposed 
upon  the  voter;  these  have  now  been  swept  away,  Rhode 
Island,  the  last  State  to  take  such  action,  having  done  so  in 
1888.  Several  States,  however,  require  the  payment  of  a 
poll  tax  as  a  condition  for  voting. 

703.  Common  Rule  of  Suffrage. — The  common  rule  is 
what  is  sometimes  called  manhood  suffrage.  That  is,  the 
vote  is  given  to  every  male  person  twenty-one  years  of  age 
and  upwards,  unless  he  has  some  prescribed  disqualifica- 
tion. These  disqualifications  are  summed  up  in  rules  the 
principal  of  which  are  mentioned  below. 

704.  Citizenship. — A  majority  of  the  States  demand 
citizenship  of  the  voter.  Some  States,  however,  give  the 
suffrage  to  every  male  person  of  foreign  birth  of  the  re- 
quired age  who  shall  have  declared  his  intention  to  become 
a  citizen  a  prescribed  time  before  the  election  at  which  he 
offers  his  vote,  the  time  varying  from  thirty  days  to  one 
year. 

705.  Residence. — Any  person  must  have  resided  in  the 
State  a  certain  time  before  he  can  become  a  voter.  This 
period  varies  from  three  months  to  two  years ;  the  common 
rule  is  one  year.  The  various  States  also  require  residence 
in  the  county  or.  voting  precinct,  or  both,  as  ninety  days  in 
the  one  and  thirty  in  the  other. 

(392) 


SUFFRAGE,  ELIGIBILITY,  AND  ELECTIONS.        393 

706.  Rac.e. — The  word  "  white  "  is  still  found  as  a  quali- 
fication for  voting  in  a  few  constitutions,  but  it  is  overrid- 
den by  Amendment  XV.  Indians  not  taxed  are  commonly 
excluded;  and  so  are  Chinamen,  or  persons  of  the  Mon- 
golian race,  in  States  on  the  Pacific  slope. 

707.  Education. — Connecticut  and  some  other  States 
make  ability  to  read  the  State  constitution  an  electoral  qual- 
ification. The  present  constitution  of  Mississippi,  adopted 
in  1890,  requires  of  the  elector  the  ability  to  read  any  sec- 
tion of  the  constitution  of  the  State,  or  ability  to  understand 
the  same  when  read  to  him,  or  to  give  a  reasonable  interpre- 
tation thereof.  Several  other  Southern  States  require  abil- 
ity to  read  or  write,  with  exceptions  in  favor  of  property 
owners,  or  in  favor  of  those  who  were  voters  in  1867  and 
their  descendants,  or  the  like. 

708.  Registration. — To  prevent  fraudulent  voting  and 
secure  honest  elections,  a  majority  of  the  States  require  a 
registration  of  the  voters  to  be  made  in  the  precinct  where 
they  reside,  sometimes  throughout  the  State  and  sometimes 
in  towns  and  cities  having  more  than  a  prescribed  popula- 
tion. New  York,  for  instance,  requires  personal  registra- 
tion in  all  towns  and  cities  having  a  population  of  5,000 
and  upward. 

709.  Religion. — The  constitution  of  Idaho  denies  the 
ballot  to  all  bigamists,  polygamists,  or  persons  living  in 
patriarchal,  plural,  or  celestial  marriage,  or  who  teach,  or 
in  any  way  countenance,  such  practices.  No  other  consti- 
tution now  contains  anything  that  can  be  termed  a  religious 
qualification  for  suffrage;  and  here  it  is  more  formal  than 
practical. 

710.  Various  Disqualifications. — Certain  classes  of  per- 
sons are  disfranchised  for  mental  or  moral  reasons.  Men- 
tion may  be  made  of  idiots,  lunatics,  and  persons  convicted 
of  infamous  crimes,  unless  civil  rights  have  been  restored 
to  them;  paupers,  duelists,  and. persons  bribing  or  attempt- 
ing to  bribe  electors,  are  also  sometimes  disfranchised. 

711.  Woman's  Suffrage. — The  Territories  of  Wyoming, 


394  THE  AMERICAN  GOVERNMENT. 

Washington,  and  Utah  gave  the  ballot  to  women  on  the 
same  terms  as  men.  Wyoming,  on  becoming  a  State,  in 
1890,  inserted  this  clause  in  her  constitution,  being  the  first 
State  to  take  such  a  step :  "  The  rights  of  citizens  of  the 
State  of  Wyoming  to  vote  and  hold  office  shall  not  be  denied 
or  abridged  on  account  of  sex."  In  1893  Colorado  adopted 
an  amendment  to  her  constitution  putting  women  on  the 
same  footing  as  men  in  respect  to  suffrage  and  holding 
office.  Utah  and  Idaho  have  also  accorded  the  ballot  to 
women.  Kansas,  Minnesota,  Montana,  New  York,  South 
Dakota,  Massachusetts,  Ohio,  Michigan,  and  some  other 
States  allow  women  to  vote  for  school  officers,  and  some  of 
them  on  other  questions  relating  to  schools.  Kansas  also 
allows  women  to  vote  in  municipal  elections.  Montana  al- 
lows women  who  are  taxpayers,  of  prescribed  age  and  char- 
acter, to  vote  equally  with  men  upon  all  questions  submitted 
to  the  vote  of  the  taxpayers,  as  such,  of  the  State,  or  any 
political  division  thereof. 

712.  Cumulative  Voting. — The  constitution  of  Illinois  gives 
each  district  three  representatives,  and  allows  each  elector  to  dis- 
tribute his  three  votes  as  he  sees  fit,  giving  them  all  to  one  candidate, 
two  to  one  candidate  and  one  to  another,  or  one  to  each  of  three 
candidates.  That  of  Pennsylvania  provides  that  when  two  judges  of 
the  Supreme  Court  are  to  be  chosen,  each  elector  shall  vote  for  only 
one  candidate;  and  that  when  three  judges  of  the  Supreme  Court,  or 
three  county  commissioners,  or  three  county  auditors  are  to  be 
elected,  each  elector  shall  vote  for  only  two  candidates.  The  object 
of  these  ijiethods  of  voting  is  to  secure  the  representation  of  minori- 
ties by  enabling  them  to  mass  their  votes  on  one  or  more  candidates. 

713.  Modes  of  Voting. — In  all  the  States  voting  is  now 
done  by  ballot,  or  by  voting  machine.  Formerly  the  viva 
voce  method  prevailed  in  many  States,  the  elector  declaring 
his  choice  to  the  judges  of  the  election,  who  recorded  it  in 
the  poll-book.  Kentucky  continued  to  elect  State  officers 
in  this  manner  until  1895. 

Since  about  1880  most  of  the  States,  with  a  view  to  protect  the 
voter  against  intimidation  or  undue  influence  in  casting  his  ballot, 
have  taken  measures  to  render  voting  absolutely  secret,  by  adopting 


SUFFRAGE,  ELIGIBILITY,  AND  ELECTIONS.        395 

the  Australian  system,  or  modifications  of  that  system.  Ballot  re- 
form has  made  its  impress  upon  two  or  more  of  the  constitutions  last 
adopted.  Idaho  provides :  "  An  absolutely  secret  ballot  is  hereby 
guaranteed,  and  it  shall  be  the  duty  of  the  Legislature  to  enact  such 
laws  as  shall  carry  this  section  into  effect."  And  Wyoming :  "  All 
voters  shall  be  guaranteed  absolute  privacy  in  the  preparation  of 
their  ballots,  and  the  secrecy  of  their  ballot."  In  West  Virginia  the 
voter  is  "  left  free  to  vote  by  either  open,  sealed,  or  secret  ballot,  as 
he  may  elect." 

714.  Holding  Office. — The  general  rule  of  eligibility  to 
office  may  be  stated  thus :  Persons  entitled  to  vote  may  also 
hold  office,  provided  they  are  of  a  certain  prescribed  age 
and  have  lived  within  the  State  a  certain  prescribed  time. 
The  Indiana  rule  is  that  the  governor  must  be  thirty  years 
of  age,  must  have  been  a  citizen  of  the  United  States  five 
years,  and  must  have  resided  in  the  State  for  the  five  years 
next  preceding  his  election.  And  this  rule  may  be  taken 
as  a  fair  example.  Several  States,  as  Pennsylvania  and 
Kansas,  allov^r  women  to  hold  school  offices,  and  four  States 
allow  them  to  hold  any  office  whatever. 

Most  of  the  constitutions  declare  that  no  religious  test 
shall  be  required  for  the  enjoyment  of  any  civil  or  political 
right,  and  that  no  preference  shall  be  given  by  law  to  any 
religious  sect.  But  several  constitutions  declare  persons 
disqualified  for  office  who  deny  the  existence  of  the  Supreme 
Being;  and  Tennessee  insists  on  a  belief  in  a  future  state  of 
rewards  and  punishments.  Idaho  declares  persons  who  are 
disfranchised  as  bigamists  or  polygamists  ineligible  to  office 
and  also  disqualified  to  sit  as  jurors. 

Formerly  office-holding  was  often  limited  by  property  qualifica- 
tions. It  was  as  late  as  1892  that  Massachusetts  struck  from  her 
constitution  the  provision  that  no  person  should  be  eligible  to  elec- 
tion as  governor  unless,  at  the  time  of  his  election,  he  should  be 
seized,  in  his  own  right,  of  a  freehold  within  the  Commonwealth  of 
the  value  of  one  thousand  pounds. 

715.  How  Parties  Originate. — In  all  countries  where 
men  are  free  to  think,  speak,  and  act  on  questions  of  govern- 
ment, there  will  arise  differences  of  political  opinion.  Some 
men  will  desire  to  have  the  government  carried  on  in  one 


396  THE  AMERICAN  GOVERNMENT. 

way,  some  in  another  way ;  and  they  will  all  wish  to  see  their 
favorite  ideas  carried  into  practical  effect.  As  separate  in- 
dividuals men  can  exert  little  influence  upon  public  affairs. 
Accordingly,  those  who  agree  on  what  they  consider  leading 
questions  learn  to  act  together.  In  other  words,  they  form 
a  political  party,  which  may  be  defined  as  a  body  of  citizens 
who  agree  in  what  they  consider  the  essentials  of  political 
faith  organized  for  political  action.  Concert  and  organiza- 
tion are  as  necessary  to  efficiency  in  politics  as  in  other 
spheres  of  activity. 

716.  Party  Committees. — The  force  that  is  always  di- 
recting and  to  a  great  extent  executing  the  work  necessary 
to  carry  the  elections  is  the  great  series  of  party  committees. 
In  general,  every  civil  division  that  elects  officers  has  within 
it  a  committee  to  look  after  the  interests  of  each  of  the  great 
political  parties.  Thus  there  are  township  committees, 
county  committees,  committees  for  the  congressional  dis- 
tricts, and  State  committees,  while  at  the  top  of  the  series  is 
the  national  committee  of  each  party.  All  these  are  made 
up  so  as  to  represent  in  some  proportion  the  subordinate 
civil  divisions.  County  committees  represent  the  townships 
or  precincts  within  the  county ;  committees  for  congressional 
districts  represent  the  counties ;  State  committees  represent 
the  congressional  districts.  The  national  committee  is  com- 
posed of  one  member  from  each  State  and  one  from  each 
Territory.  The  work  of  these  party  committees  includes  the 
holding  together  of  their  respective  bodies  of  voters,  and  the 
gaining  of  new  adherents.  They  handle  to  a  great  extent 
the  money  expended  for  party  ends.  Their  most  conspicu- 
ous office  is  to  manage  the  political  conventions  within  their 
respective  districts. 

717.  Political  Conventions. — The  chief  work  of  a  polit- 
ical convention  is  to  nominate  candidates  for  the  offices  to  be 
filled  within  the  district  to  which  the  convention  corresponds. 
In  other  words  it  is  to  make  the  party  ticket.  It  also 
chooses  delegates  to  the  convention  next  higher  in  rank,  and 
a  member  or  members  of  the  party  committee  for  the  next 


SUFFRAGE,  ELIGIBILITY,  AND  ELECTIONS.        397 

higher  poHtical  division.  The  convention  is  summoned  by 
the  proper  committee  at  such  time  as  to  give  a  suitable  inter- 
val for  party  work  before  the  next  election.  The  national 
conventions  are  held  once  in  four  years  to  put  in  nomination 
candidates  for  the  offices  of  President  and  Vice  President. 

718.  Political  Platforms. — The  various  conventions 
commonly  adopt  resolutions  declaring  the  leading  articles  of 
party  doctrine  as  those  participating  understand  them. 
Such  resolutions,  when  adopted  by  a  State  convention,  are 
called  a  State  platform;  when  adopted  by  a  national  con- 
vention, a  national  platform. 

719.  Officers  and  Rules. — The  various  political  bodies 
that  have  been  described  appoint  their  own  officers,  chairman 
and  clerk,  or  president  and  secretary.  The  higher  conven- 
tions, like  legislative  bodies,  do  much  of  their  work  by  com- 
mittees. Business  is  commonly  transacted  in  accordance 
with  the  ordinary  rules  governing  public  assemblies.  Still 
every  convention  has  a  right  to  enact  rules  for  its  own  gov- 
ernment, and  also  to  pnact  rules  that,  until  they  are  repealed, 
will  bind  the  corresponding  central  committee  and  the  next 
ensuing  convention. 

720.  Representation  and  Voting. — A  common  rule  is  to 
assign  the  members  that  make  up  conventions  within  the 
State  to  the  townships,  counties,  etc.,  according  to  the  num- 
ber of  votes  that  they  cast  for  the  leading  candidate  on  the 
party  ticket  at  the  last  preceding  general  election.  With  a 
single  exception,  a  majority  suffices  for  carrying  a  vote.  It 
is  a  long-standing  rule  of  the  Democratic  national  conven- 
tions to  require  two-thirds  of  those  voting  to  nominate  candi- 
dates for  President  and  Vice  President. 

721.  The  Unit  Rule. — It  is  not  uncommon  for  the  dele- 
gates to  a  convention  from  the  same  political  division,  as  the 
township,  county,  or  State,  to  vote  together,  as  one  man,  in 
making  nominations.  This  is  to  secure  greater  weight  in 
deciding  the  issue.  Sometimes  a  delegation  is  instructed 
to  vote  for  a  certain  candidate,  as  a  presidential  candidate. 
This  is  known  as  the  unit  rule. 


398  THE  AMERICAN  GOVERNMENT. 

722.  Direct  Nominations. — It  is  obvious  that  the  nom- 
ination of  candidates  by  conventions  takes  away  from  the 
mass  of  voters  all  freedom  in  the  choice  of  individual  men. 
This  is  contrary  to  the  principles  of  republican  government. 
A  governor  of  one  of  the  States  has  said  on  this  subject: 
"  The  people  are  as  much  entitled  to  their  right  to  choose 
candidates  as  to  their  right  to  choose  their  officers  at  the  en- 
suing election."  Nomination  by  primary  elections  is  the 
name  given  to  the  system  that  secures  this  end. 

723.  Primary  Meetings  and  Caucuses. — When  the 
voters  of  a  given  party  within  a  township  or  precinct  gather 
together  to  choose  candidates  for  the  local  offices,  the  assem- 
bly is  a  primary  meeting.  Such  meetings  often  designate 
the  delegates  to  the  county  convention,  and  so  are  the  start- 
ing point  in  the  convention  system.  This  is  particularly 
true  in  cities  where  party  activities  begin  in  the  ward  pri- 
maries. The  name  "  caucus  "  is  also  applied  to  the  primary 
meeting.  However,  this  name  is  more  properly  used  to  de- 
note the  smaller  meetings  that  are  called  by  a  more  private 
initiative,  for  the  purpose  of  agreeing  upon  schemes  to  be 
worked  out  at  the  primaries. 

724.  Primary  Elections. — It  would  generally  be  im- 
practicable to  summon  a  meeting  of  all  the  voters  of  a  county 
for  the  direct  nomination  of  candidates  for  the  offices.  Still 
mass  conventions,  which  are  opposed  in  character  to  conven- 
tions of  delegates,  are  sometimes  called  at  the  discretion  of 
party  leaders.  It  would  be  highly  impracticable  to  hold  a 
mass  convention  for  a  congressional  district  or  a  State. 
However,  primary  elections  for  the  larger  civil  divisions, 
which  means  the  direct  choice  of  party  candidates  by  the 
voters  themselves,  may  be  conducted  by  summoning  primary 
meetings  in  the  different  precincts  and  taking  the  result  of 
all  the  votes  cast.  The  primary  election  system,  it  will  be 
seen,  is  opposed  to  the  nominating  convention  as  made  up  of 
delegates.  It  is  sometimes  called  the  "  Crawford  County 
Plan,"  from  Crawford  County,  Pennsylvania,  where  it  is 
said  to  have  originated. 


SUFFRAGE,  ELIGIBILITY,  AND  ELECTIONS.        399 

725.     State  Legislatures  and  Party  Machinery. — In  no 

other  country  is  such  an  extensive  system  of  party  machinery 
found  as  in  the  United  States.  It  embraces  the  caucus,  pri- 
mary meeting,  and  county,  district.  State,  and  national  con- 
ventions. Its  operations  depend  largely  upon  the  series  of 
committees  which  correspond  to  the  various  grades  of  civil 
divisions.  The  whole  system  has  been  built  up  by  the  purely 
voluntary  activity  of  the  political  parties.  Notwithstanding 
the  very  great  part  that  this  machinery  plays  in  determining 
political  events,  it  lies,  to  a  very  great  extent,  outside  the 
pale  of  the  laws.  However,  State  legislatures  have  begun 
to  take  important  action  upon  the  subject  of  nominating  can- 
didates for  office.  For  instance  the  laws  regulating  elec- 
tions define,  to  a  certain  extent,  how  party  conventions  shall 
be  conducted.  There  is  now  a  movement  in  a  number  of 
States  to  establish  by  law  some  form  of  the  primary  elec- 
tion system.  It  has  not  been  uncommon  to  employ  this  sys- 
tem in  certain  cities  and  towns.  In  the  South,  where  party 
organization  is  not  so  complete  as  in  the  Northern  States, 
direct  nominations  have  been  the  rule  to  a  greater  extent 
than  in  the  North.  However,  the  matter  has  usually  been 
left  to  the  choice  of  party  leaders,  the  law  merely  making 
certain  regulations  for  all  systems.  In  1899  Minnesota  led 
the  way  in  making  direct  nominations  mandatory  through- 
out the  State,  though  not  for  all  grades  of  offices.  In  1902 
the  governors  of  four  States,  Mississippi,  Maryland,  New 
Jersey,  and  Virginia,  recommended  action  on  the  subject  to 
the  legislatures.  In  the  first  two  of  these  States  such  laws 
were  passed. 


CHAPTER  LV. 

LOCAL  GOVERNMENT. 

References. 

The  best  historical  work  on  this  subject  is  Howard,  An  Introduc- 
tion to  the  Local  Constitutional  History  of  the  United  States  (Vol. 
I.,  "Development  of  the  Township,  Hundred,  and  Shire").  Johns 
Hopkins  University,  Studies  in  the  Historical  and  Political  Sciences, 
edited  by  H.  B.  Adams,  Vol.  I.,  "  Local  Institutions "  (additional 
matter  relating  to  the  same  subject  is  found  in  Vols.  H.,  HI.;  there 
are  also  papers  on  municipal  government  in  Vols.  IV.,  V.,  VII.)  ; 
Fiske,  Civil  Government  in  the  United  States  Considered  with  Ref- 
erence to  its  Origins;  Galpin,  Statistical-  Atlas  of  the  United  States, 
with  Maps,  the  Seventh  Census;  Conkling,  City  Government  in  the 
United  States;  Shaw,  Municipal  Government  in  England;  Jenks,  An 
Outline  of  English  Local  Government. 

Attention  has  been  drawn  to  the  fact  that  the  national  Con- 
stitution and  laws  form  but  half  of  the  American  (jovern- 
ment,  and  that  we  must  resort  to  the  State  constitutions  and 
laws  for  the  other  half.  But  the  State  governments,  prop- 
erly so-called,  by  no  means  exercise  all  the  remaining  pow- 
ers that  are  necessary  to  the  peace  and  good  order  of  society. 
A,  multitude  of  legislative  and  executive  acts  can  be  named 
that  the  State  legislature  and  executive  never  touch.  Be- 
sides, these  are  the  very  acts  in  which  the  average  citizen  is 
most  interested.  The  State  constitutions  and  laws  do  in- 
deed provide  for  their  performance,  but  only  in  an  indirect 
way.  These  facts  bring  before  us  some  of  the  most  charac- 
teristic political  ideas  and  institutions  of  the  English-speak- 
ing race. 

These  ideas  and  institutions  relate  to  local  government. 

Their  origin  in  England  was  dealt  with  in  Chapter  II.  of 

this  work ;  also  the  three  types  of  local  government  that,  in 

(400) 


LOCAL  GOVERNMENT.  401 

obedience  to  English  influence  and  American  conditions, 
sprang  up  in  the  United  States.  We  must  now  return  to 
the  subject,  for  the  purpose  of  describing  these  types  as  they 
exist  at  the  present  time. 

I.     The  Town  System, 

726.  Continuity  of  New  England  Life. — The  poUtical 
institutions  that  first  rooted  in  New  England,  local  as  well 
as  central,  proved  to  be  permanent.  The  Town  system  of 
government  has,  with  time,  undergone  minor  modifications, 
but  it  still  exists  in  its  principal  original  features.  It  is  not 
possible,  or  even  necessary,  to  follow  its  history,  or  fully  to 
describe  it,  as  found  in  any  one  State,  and  much  less  in  all 
the  States ;  but  it  is  important  to  state  its  characteristic  fea- 
tures. 

727.  The  New  England  Town. — The  town  receives  a 
charter  from  the  State  legislature,  and  is  a  body  politic  and 
corporate.  It  elects  its  own  officers,  and  manages  its  local 
concerns  in  its  own  way.  It  imposes  and  collects  its  own 
taxes,  expends  its  own  money,  and  lends  to  the  county  and 
State  the  use  of  its  local  machinery  for  levying  and  collecting 
county  and  State  taxes.  Every  town  was  once  represented 
in  the  legislature,  but  town  representation  is  found  now  only 
in  New  Hampshire  and  Vermont. 

728.  Town  Meeting. — Once  a  year,  or  oftener,  the  elec- 
tors of  the  town  meet  in  town  meeting,  as  their  Saxon  ances- 
tors met  in  town-moot.  The  assembly  chooses  its  own  mod- 
erator, and  any  elector  can  make  and  discuss  motions  as  well 
as  vote.     The  business  transacted  may  be  thus  grouped : 

1.  The  affairs  of  the  town  are  canvassed ;  reports  arc 
made  and  accounts  presented  and  discussed. 

2.  The  town  taxes  are  voted,  care  being  taken  to  desig- 
nate the  objects  for  which  money  shall  be  expended. 

3.  Town  officers  are  chosen.  Tlie  annual  meeting  at 
which  this  is  done  is  held  in  February,  March,  or  April. 
Town  meetings,  or  elections,  for  selecting  county,  State,  or 
national  officers  are  held  at  such  times  as  the  law  may  fix. 

AM.     GOV. — 36 


402  THE  AMERICAN  GOVERNMENT. 

729.  Town  Officers. — The  selectmen,  three,  five,  seven, 
or  nine  in  number,  are  the  general  managers  of  the  town 
business.  They  issue  warrants  calling  the  town  meetings ; 
preside  at  those  held  for  county.  State,  or  national  purposes, 
canvassing  the  votes  and  declaring  the  result ;  grant  licenses, 
impanel  jurors,  listen  to  complaints  about  public  matters, 
lay  out  town  roads,  "  speak  for  the  town  "  in  county  or  State 
matters,  register  the  voters,  and  attend  to  many  other  things 
besides.  The  school  committee  has  general  oversight  of  the 
town  schools.  The  duties  of  the  other  officers  are  sufficiently 
indicated  by  their '  titles ;  the  clerk,  treasurer,  assessor  of 
taxes,  overseers  of  the'  poor,  surveyors  of  highways,  fence- 
viewers,  etc. 

730.  The  County. — The  New  England  county  is  also 
a  corporation.  It  is  mainly  a  judicial,  and  not  a  political, 
division  of  the  State ;  in  Rhode  Island  there  are  no  county 
officers  but  the  judicial  officers.  The  three  county  commis- 
sioners, elected  by  the  people,  build  and  manage  the  county 
buildings,  lay  out  new  highways  leading  from  one  town  to 
another,  estimate  the  annual  county  taxes  and  apportion 
them  among  the  several  towns  and  cities,  audit  the  accounts 
of  the  treasurer,  and  perform  a  variety  of  other  business. 
Other  officers  are  the  clerk  of  the  court,  the  treasurer,  the 
register  of  deeds,  and  the  register  of  probate,  who  is  the 
clerk  of  the  Probate  Court. 

II.    The  County  System. 

731.  Its  Extent. — The  example  of  Virginia,  in  which 
the  county  system  first  grew  up,  and  the  influence  of  similar 
material  and  social  conditions,  firmly  fixed  the  county  system 
in  all  the  old  South  Atlantic  States.  Moreover,  it  was  an 
overflow  of  the  population  of  these  States  that  created  the 
new  ones  west  of  the  Alleghany  Mountains  and  south  of  the 
Ohio  River.  As  these  people  carried  their  old  ideas  and  in- 
stitutions with  them,  and  as  they  found  in  the  West  physical 
conditions  similar  to  those  that  they  had  left  behind,  it  would 
be  strange  indeed  if  the  county  system  had  not  taken  firm 


LOCAL  GOVERI^MENT.  403 

root  in  the  old  South  Central  States.  More  than  this. 
Southern  men  from  both  of  the  old  sections  pushed  into  the 
Northwest  and  the  farther  West,  and  planted  the  same  sys- 
tem wherever  their  influence  was  predominant.  Accord- 
ingly, it  is  found  to-day,  not  only  in  the  Southern  States 
west  of  the  Mississipj3i,  but  also  in  California,  Oregon,  and 
some  other  States  as  well. 

732.  The  County. — Where  the  county  system  prevails 
the  conditions  of  the  town  system  are  wholly  reversed.  The 
county  is  the  political  unit,  and  is  clothed  with  all  local  po- 
litical powers.  It  receives  its  charter  from  the  legislature, 
and,  as  in  olden  times,  is  responsible  to  the  State  for  its 
quota  of  the  State  taxation.  "  The  area  of  the  county,"  says 
Professor  Galpin,  "  forbids  any  general  gathering  of  its  in- 
habitants vested  with  the  legislative  and  executive  functions 
of  the  town  meeting,  as  well  as  any  intimate  mutual  ac- 
quaintance between  the  inhabitants  of  its  different  sections. 
Of  necessity,  therefore,  the  administration  of  all  local  affairs 
is  intrusted  wholly  to  the  county  officers,  and  the  political 
duty  and  privilege  of  the  citizen  begins  and  ends  on  election 
day.  The  duly  authorized  officers  of  the  county  are  thus 
charged  with  the  care  and  control  of  the  county  property, 
the  levy  and  collection  of  State  and  county  taxes,  the  division 
of  the  county  into  election  districts,  the  laying  out  and  re- 
pairing of  roads  and  bridges,  the  care  of  the  poor,  the  police 
of  the  county,  and  in  general,  all  county  and  local  affairs." 
The  officers  charged  with  these  duties  are  elected  or  ap- 
pointed in  different  ways  and  for  different  times,  and  are  not 
uniform  in  number.  The  common  name  of  the  body  is 
County  Board  or  County  Court.  Other  officers  are  the  col- 
lector, assessor,  superintendent  of  schools,  apportioners  of 
roads,  sheriff,  etc.  There  is  also  a  Probate  Court  as  well  as 
the  State  courts. 

733.  The  Township. — The  subdivisions  of  the  county 
are  known  in  different  States  by  different  names,  viz. :  in 
Alabama,  Fforida,  Colorado,  Nebraska,  Oregon,  and  Texas, 
as  precincts ;  in  Arkansas,  California,  Missouri,  Montana, 


404  THE  AMERICAN  GOVERNMENT. 

and  the  Carolinas,  as  townships ;  in  Delaware,  as  hundreds ; 
in  Georgia,  as  miUtia  districts ;  in  Louisiana,  where  also  the 
counties  are  called  parishes,  as  wards ;  in  Maryland,  as  elec- 
tion districts ;  in  Mississippi,  as  beats ;  in  Tennessee,  as  civil 
districts.  In  most  of  the  county-system  States  the  local  sub- 
divisions, by  whatever  name  known,  are  created  by  the 
county  authorities.  They  are  but  skeletons,  and  exist  only 
for  convenience  as  districts  for  holding  elections,  for  fixing 
the  jurisdiction  of  the  justice  of  the  peace,  or  for  determining 
the  militia-company  organization.  Justices  of  the  peace  and 
constables  are  found  in  these  districts,  but  the  districts  are 
in  no  sense  political  organs. 

It  is  difficult  to  conceive  of  modes  of  local  government  existing  in 
democratic  states  more  unlike  than  the  town  and  county  systems. 
In  New  England  the  town  has  a  distinct  name,  of  which  the  citizens 
are  generally  proud,  and  historical  associations  of  which  they  are  still 
prouder ;  in  the  South  these  feelings  and  associations  all  cluster 
about  the  county.  In  Massachusetts  we  read  of  the  town  of  Danvers, 
Quincy,  or  Dedham ;  in  Virginia  of  Westmoreland  or  Rockinghaqi 
county.  In  several  Southern  States  the  subdivisions  are  numbered, 
many  or  all  of  them  having  no  names  of  their  own.  Mr.  Jefferson's 
admiration  of  the  town  system,  and  his  futile  attempts  to  introduce 
it  into  Virginia,  are  well  known.* 

III.     The  Mixed  System, 

734.  Two  Types. — As  we  saw  in  Chapter  II.,  two  types 
of  the  mixed  system,  which  is  also  called  the  Compromise 
system,  appeared  in  Colonial  times,  the  one  in  New  York 
and  the  other  in  Pennsylvania.  In  both  States  town  or 
township  and  county  elements  are  found,  but  they  are  com- 
bined in  different  ratios.  The  New  York  type,  possibly 
owing  to  New  England  influence,  is  the  more  democratic, 
placing  greater  stress  on  the  township ;  the  Pennsylvania 
type,  possibly  owing  to  Southern  influence,  is  the  more  cen- 
tralized, placing  greater  stress  on  the  county.  Their  com- 
mon features,  as  well  as  the  leading  points  of  diflFerence,  will 
be  more  carefully  stated. 

'  See  his  iVorks,  Vol.  V.,  p.  325;  Vol.  VI.,  p.   13,  Vol.  VII.,  p.  357. 


LOCAL  GOVERNMENT.  405 

735.  The  County. — In  both  New  York  and  Pennsyl- 
vania, the  county  is  a  body  politic  and  corporate.  In  New 
York  the  county  administration  is  in  the  hands  of  a  board 
of  supervisors,  in  which  the  townships  are  equally  repre- 
sented ;  in  Pennsylvania,  it  is  in  the  hands  of  a  board  of  three 
commissioners,  elected  by  the  county  at  large.  The  New 
York  supervisor  is  also  a  township  officer  in  his  township; 
but  the  Pennsylvania  commissioner  has  no  township  powers 
or  duties  whatever.  The  county  board  in  both  States  lays 
out  county  roads  and  builds  county  bridges ;  erects  and  cares 
for  the  county  buildings;  levies  taxes  and  borrows  money 
for  county  purposes,  subject  to  law ;  audits  the  accounts  of 
county  and  township  officers ;  passes  upon  claims  against  the 
townships,  directing  the  raising  of  funds  for  their  payment, 
as  well  as  township  propositions  to  borrow  money,  and  dis- 
charges all  duties  properly  connected  with  the  county  admin- 
istration. All  taxes,  except  such  as  may  be  laid  by  school 
districts  for  school  purposes  and  by  municipalities,  are  levied 
by  the  county  board;  State- taxes  on  the  warrant  of  the  State 
authority,  county  taxes,  not  exceeding  a  certain  limit,  at  its 
own  discretion,  and  township  taxes  on  the  certificate  of  the 
township  authority.  The  New  York  board  examines  ^and 
allows  claims  against  the  county,  and  levies  taxes  for  their 
payment ;  in  Pennsylvania  both  duties  are  performed  by  a 
board  of  three  special  auditors.  Other  county  officers  are 
the  clerk,  the  treasurer,  the  recorder  or  register  of  deeds, 
and  the  commissioner  or  superintendent  of  schools. 

736.  The  Township. — Under  the  dual  system,  the  town- 
ship is  also  a  body  corporate  and  politic.  In  New  York  it  is 
created  by  the  county  board ;  in  Pennsylvania,  by  the  County 
Court  of  Quarter.  Sessions ;  in  New  Jersey,  by  the  legisla- 
ture. It  has  power  to  lay  out  and  repair  the  highways,  to 
estimate  the  amount  of  taxes  to  be  raised  for  schools  and 
other  local  purposes,  which  estimates  it  submits  to  the 
county  authorities  for  approval,  and,  in  general,  to  act  upon 
local  matters  not  delegated  to  the  county.  In  New  York 
the  township  meeting  passes   directly   upon   certain   local 


406  THE  AMERICAN  GOVERNMENT. 

questions;  but  in  Pennsylvania,  where  the  administration  is 
more  centralized,  these  duties  devolve  upon  a  local  board  of 
supervisors.  The  township  officers  are  one  or  more  super- 
visors, a  clerk,  assessors,  constables,  justices  of  the  peace, 
and  commissioners  of  the  highways.  In  New  York  the  poor 
support  is  furnished  partly  by  the  township  and  partly  by 
the  county ;  in  Pennsylvania  it  is  under  the  control  of  a 
county  director.  Schools  are  carried  on  by  the  township, 
but  are  subject  to  county  supervision.  It  should  be  added 
that  the  legislatures  subject  both  county  and  township  ex- 
penses to  strict  regulation,  to  prevent  abuse  of  powers. 

737.  Blending  of  Elements  in  the  West. — The  early 
movements  of  population  in  the  United  States  were  west- 
ward along  parallels  of  latitude.'  Emigrants  from  the  three 
divisions  of  the  old  States  carried  with  them  their  political 
ideas,  habits,  and  preferences ;  but  the  emigration  from  New 
England  was  so  blended  with  that  from  the  South,  and  par- 
ticularly with  that  from  the  Middle  States,  that  it  was  never 
able  to  establish  the  town  system  pure  and  simple.  Only 
the  county  system  and  the  mixed  system  are  found  west  of 
the  Atlantic  States. 

;y8.  Pennsylvania  Type  in  the  West. — The  governor 
and  judges  of  the  Northwest  Territory  were  authorized  by 
the  Ordinance  of  1787  to  adopt  and  publish  such  laws  of  the 
original  States  for  said  Territory  as  they  deemed  fit  and 
necessary.  The  ordinance  also  contemplated  the  creation  of 
counties  and  towns.  This  first  legislature,  like  the  popula- 
tion, was  made  up  of  men  from  all  sections  of  the  country : 
Governor  St.  Clair  was  from  Pennsylvania,  Judge  Symmes 
from  New  Jersey,  Judge  Putnam  from  Massachusetts,  Judge 
Turner  from  North  Carolina.  The  result  was  the  establish- 
ment of  the  Pennsylvania  system  north  of  the  Ohio,  with 
some  changes  eflFected  by  New  England  influence.  This 
early  legislation,  strengthened  by  the  influences  that  pro- 
duced it,  permanently  settled  the  status  of  Ohio  and  Indiana, 
and  also  exerted  a  considerable  influence  upon  other  Western 
States. 


LOCAL  GOVERNMENT.  407 

739.  New  York  Type  in  the  West. — The  New  York 
type,  more  or  less  modified  sometimes  by  other  ideas,  has 
been  widely  adopted  throughout  the  West  and  Northwest. 
In  some  States,  even  the  township  meeting  for  purposes  of 
legislation  has  been  introduced.  Michigan  is  a  good  exam- 
ple of  the  strength  of  this  type;  the  governor  and  judges  of 
the  Northwest  Territory  set  up  the  Pennsylvania  type,  but 
with  an  increased  proportion  of  immigrants  from  New  York 
and  New  England  this  was  rejected  and  the  New  York  type 
substituted  in  its  place. 

740.  Changes  of  Type. — A  closer  study  of  the  subject  than  the 
present  one  would  bring  into  view  many  minor  facts  of  much  inter- 
est. One  of  these  facts  would  be  the  influence  of  the  different  sec- 
tions of  the  country,  and  the  different  systems,  upon  one  another.  In 
some  States  we  sometimes  find  two  systems  existing  side  by  side. 
The  first  constitution  of  Illinois,  framed  mainly  by  Southern  men  in 
1818,  established  the  county  system;  the  constitution  of  1848,  there 
having  been  a  large  influx  of  Eastern  population  in  the  meantime, 
authorized  a  law  that  left  the  settlement  of  the  question  to  the  people 
of  the  counties;  and  under  the  law  that  the  legislature  passed  in 
pursuance  of  this  authority,  more  than  fwo  thirds  of  the  counties  ' 
now  have  the  mixed  system.  In  other  States,  also,  as  in  Missouri 
and  Nebraska,  this  system  is  rapidly  encroaching  upon  the  county 
system,  under  a  similar  county  option  law. 

741.  Relative  Merits  of  the  Several  Systems. — The  merits  of 
the  different  systems  cannot  be  discussed  as  an  abstract  question. 
Much  depends  upon  natural  and  social  factors.  The  highly  special- 
ized town  system  was  most  consonant  with  New  England  civiliza- 
tion ;  the  county  system  was  best  adapted  to  the  South ;  and  the 
compromise  system,  under  its  two  forms,  has  well  met  the  needs  of 
the  West  and  Northwest.  This  system  is  now  encroaching  upon  the 
county  system,  and  it  will  not  be  surprising  if  in  time  the  county  sys- 
tem is  largely  or  wholly  supplanted.  Combining  the  stronger  features 
of  the  two  other  systems,  as  the  Union  combines  the  stronger 
features  of  large  and  small  states,  the  mixed  system  has  shown  sin- 
gular vitality  and  power. 

Evidently,  the  supervisor  type  of  the  county  system  is  more  demo- 
cratic than  the  commissioner  type,  but  also  more  cumbersome.  It 
may  fairly  be  claimed  for  the  board  of  commissioners,  particularly  in 
a  county  where  there  would  be  a  large  number  of  supervisors,  that 
it  is  more  effective,  and  gives  less  opportunity  for  log-rolling  and 
pipe-laying.    The  two  forms  of  the  mixed  system  are  sometimes 


408  THE  AMERICAN  GOVERNMENT. 

called  the  Township-county  system  and  the  County-precinct  system. 
The  political  influence  of  New  York  and  Pennsylvania  upon  the 
West  has  been  far  greater  than  that  of  any  other  States. 

IV.     Municipal  Government.  ^ 

742.  Need  of  Municipal  Government. — No  one  of  the 
three  sy.stems  of  local  government  just  described  will  answer 
the  purposes  of  a  city,  or  at  least  of  a  large  city.  Nor  can 
the  State  govern  it  to  advantage.^  It  needs  a  government 
that  is  centralized  and  efficient.  This  demand  is  met  by 
municipal  government,  a  word  that  means  pertaining  to  a 
municipium,  or  a  self-governing  Italian  town  in  the  Roman 
period. 

In  1789  there  were  but  five  or  six  places  of  over  8,000  population 
in  the  United  States,  and  but  3.4  per  cent  of  the  total  population 
lived  in  them.  In  1900  there  were  545  such  places,  and  33.1  per  cent 
of  the  population  lived  in  them.  At  present,  therefore,  municipal 
government  takes  high  rank  among  the  local  institutions  of  the  coun- 
try. 

743.  City  and  State. — The  government  of  a  city  is  a 
reduced  copy  of  the  government  of  the  State.  It  has  its 
own  constitution,  its  own  laws,  its  own  legislature,  execu- 
tive, and  judiciary,  its  own  treasury,  and  its  own  police  force. 
Except  that  it  is  subject  to  the  State,  it  occupies  a  position 
not  unlike  that  of  the  free  city  of  the  Middle  Ages,  or  like 
Hamburg  and  Bremen  in  the  German  Empire  to-day. 

744.  The  City  Constitution. — The  constitution  of  the 
city  is  its  charter,  which  is  conferred  upon  the  city  by  the 
State  legislature.  Most  frequently,  in  the  case  of  large  cit- 
ies, the  charter  is  a  special  act  or  acts  enacted  in  the  usual 


*  Mr.  Flske  has  shown  not  only  that  State  legislatures  are  incompetent 
to  manage  the  local  affairs  of  cities,  but  also  that  they  have  not  the  time  to  do 
so.  "In  1870  the  number  of  acts  passed  by  the  New  York  legislature  was 
808.  0£  these  212,  or  more  than  one  fourth  of  the  whole,  related  to  cities  and 
villages.  The  808  acts,  when  printed,  filled  about  2,000  octavo  pages;  and  of 
these  212  acts  filled  more  than  1,800  pages."  (p.  128.)  And  yet  these  acts 
dealt  only  with  the  general  features  of  the  cities  and  villages.  When  we  add 
to  this  mass  of  laws  the  far  greater  volume  of  city  and  village  legislation,  we 
can  form  some  adequate  notion  of  the  relation  that  local  government  bears  to 
government  as  a  whole. 


LOCAL  GOVERNMENT.  409 

manner;  but  sometimes,  and  particularly  in  small  cities,  it 
is  simply  some  general  provisions  of  the  law  or  constitu- 
tion that. apply  to  all  cities  of  a  certain  size.  In  either  case 
.the  legislature  establishes  the  principal  features  of  a  city 
government,  and  declares  its  duties  and  responsibilities. 

745.  The  City  Legislature. — The  city  legislature  is  usu- 
ally called  the  city  council.  Frequently  it  consists  of  two 
chambers,  the  board  of  aldermen  and  the  common  council; 
but  in  many  small  cities,  as  well  as  in  New  York,  Chicago, 
and  San  Francisco,  it  consists  of  only  one  chamber.  The 
acts  of  this  legislature  are  generally  known  as  the  city  ordi- 
nances. The  council  levies  the  local  taxes  and  makes  the 
local  appropriations,  and  ordinarily  has  more  or  less  to  do 
with  the  executive  administration. 

746.  The  City  Executive. — The  chief  city  executive  is 
the  mayor.  His  relations  to  the  council  and  to  the  city  are 
very  like  the  relations  of  the  governor  to  the  legislature  and 
the  State.  He  communicates  information  relative  to  city 
affairs  in  messages,  norhinates  officers,  signs  or  vetoes 
ordinances,  looks  after  the  due  execution  of  the  city  laws, 
and  commonly  has  more  or  less  control  of  the  police.  The^ 
mayor's  powers  and  duties  are  far  more  numerous  and  im- 
portant in  some  cities  than  in  others. 

747.  City  Departments. — A  large  amount  of  the  adminv 
istrative  business  is  usually  transacted  through  bureaus,  ex- 
ecutive departments,  or  boards.  Mention  may  be  made  of 
the  departments  of  finance,  police,  streets,  public  buildings, 
water  supply,  improvements,  education,  and  the  infirmary. 
These  departments  are  sometimes  administered  by  salaried 
officers,  sometimes  by  committees  of  the  council,  while  some- 
times such  officers  and  council  committees  act  together. 

748.  The  City  Judiciary. — The  most  characteristic  fea- 
ture of  the  city  judicial  system,  as  such,  is  the  court  having 
jurisdiction  of  minor  criminal  offenses.  This  is  sometimes 
held  by  the  mayor  himself,  but  more  frequently,  at  least 
where  the  mayor  has  large  administrative  duties  to  perform, 
there  is  a  special  judge  called  the  city  or  police  judge.     The 


410  THE  AMERICAN  GOVERNMENT. 

ordinary  justices'  courts  may  also  be  mentioned.     Occasion- 
ally a  city  has  a  complete  system  of  courts,  lacking  only  a 
court  of  final  resort,  but  as  a  rule  cities  have,  with  the  ex- 
ception of  the  police  court,  the  same  courts  as  the  county^ 
in  which  they  are  situated. 

749.  Municipal  Reform. — The  great  increase  in  the  number  of 
American  cities,  and  the  rapid  growth  of  many  of  them,  have  been 
attended  by  much  inefficiency  and  corruption  in  city  government. 
Numerous,  but  as  a  rule  not  very  successful,  attempts  have  been  made 
to  reform  these  abuses.  Perhaps  the  best  known  of  these  plans  is 
that  called  the  Federal  Plan,  which  was  put  in  operation  in  Philadel- 
phia in  1887.  This  plan  vests  all  legislative  power  in  the  council, 
and  all  executive  power  in  the  mayor  and  the  heads  of  certain  de- 
partments appointed  by  the  mayor  with  the  consent  of  the  council. 
The  mayor  also  has  the  veto  power.  The  great  argument  urged  in 
behalf  of  this  system  is  that  it  centers  power  and  responsibility  in  a 
few  persons. 

750.  France  and  the  United  States. — Attention  has  often  been 
drawn  to  the  contrast  in  respect  to  local  government  presented  by 
France,  on  the  one  hand,  and  the  United  States,  on  the  other. 
France  is  divided  into  departments,  arrondissements,  cantons,  and 
communes,  all  administrative  divisions.  The  department  and  the 
commune  are  the  most  important.  Each  of  these  has  its  own  coun- 
cil or  legislature  elected  by  universal  suffrage ;  but  these  bodies  have 
few  powers,  and  they  are  limited,  first  by  the  local  executives,  and 
secondly  by  the  national  administration.  The  prefects  and  the  may- 
ors are  dependent  upon  the  central  authority  rather  than  upon  the 
people.  The  result  is  that  local  self-government  is  unknown. 
While  France  is  a  republic,  Mr.  Fiske  well  remarks  that,  "  as  con- 
trasted with  American  methods  and  institutions,  it  is  difficult  to  call 
it  anything  else  than  a  highly  centralized  despotism." 

751.  Local  Government  and  Centralization. — These  definitions 
are  quoted  by  Mr.  Fiske  from  Mr.  Toulmin  Smith : 

"  Local  self-government  is  that  system  of  government  under  which 
the  greatest  number  of  minds,  knowing  the  most,  and  having  the 
fullest  opportunities  of  knowing  it,  about  the  special  matter  in  hand, 
and  having  the  greatest  interest  in  its  well-working,  have  the  man- 
agement of  it  or  control  over  it." 

"  Centralization  is  that  system  of  government  under  which  the 
smallest  number  of  minds,  and  those  knowing  it  the  least,  and  hav- 
ing the  fewest  opportunities  of  knowing  it,  about  the  special  matter 
in  hand,  and  having  the  smallest  interest  in  its  well-workihg,  have 
the  management  of  it  or  control  over  it." 


CHAPTER  LVI. 

STATE  EDUCATION. 

References, 

Bureau  of  Education,  Contributions  to  American  Educational  His- 
tory,  edited  by  Herbert  B.  Adams  (a  valuable  series  of  monographs 
devoted  to  education  in  the  different  States)  ;  Boone,  Education  in 
the  United  States;  Hough,  Constitutional  Provisions  in  Regard  to 
Education  in  the  Several  States  of  the  American  Union  (a  bulletin 
published  by  the  Bureau  of  Education,  1875)  ;  Bureau  of  Education, 
Report  of  Commissioner  for  1868,  1.,  "Education  a  National  Inter- 
est;" Donaldson,  The  Public  Domain,  etc.;  Knight,  History  and 
Management  of  Land  Grants  for  Education  in  the  Northwest  Terri- 
tory; Ten  Brook,  American  State  Universities  and  the  University  of 
Michigan. 

752.  No  National  School  System. — The  provision  of 
education  is  not  included  among  the  powers  delegated  to  the 
national  government.  The  Constitution  does  not  contain 
the  words  education  and  schools,  and  hence  its  adoption  left 
the  whole  subject  where  it  had  already  been,  in  the  hands 
of  the  States,  save  as  Congress  might,  from  time  to  time, 
under  the  general  welfare  clause,  indirectly  render  them 
assistance. 

753.  The  State  Systems. — Some  of  the  States  already 
had  systems  of  public  schools  in  1787,  which  they  have  ex- 
tended and  improved.  The  other  States  have  organized 
them,  and  every  State  in  the  Union  now  has  a  system  of 
schools  more  or  less  perfect.  These  systems  are  all  provided 
for,  or  are  at  least  recognized,  in  the  State  constitutions,  and 
are  fully  elaborated  in  school  laws. 

I.    The  School  Provision, 

754.  Common  Schools. — The  studies  prescribed  by  the 

(411) 


412  THE  AMERICAN  GOVERNMENT. 

State  laws  or  constitutions  are  called  the  legal  studies.  They 
differ  somewhat  in  different  States,  but  the  so-called  com- 
mon branches  of  English  study  are  found  in  all  the  States. 
The  minimum  time  that  the  schools  must  be  in  session,  which 
is  prescribed  by  law,  ranges  from  four  to  seven  months  in 
the  year.  Many  of  the  States  have  enacted  laws  making  a 
certain  amount  of  education  or  school  attendance  compul- 
sory. 

755.  High  Schools. — All  the  States  make  provision  for 
the  creation  and  support  of  high  schools,  but  only  Massa- 
chusetts makes  them  compulsory.  In  that  State  these 
schools  must  be  open  forty  weeks  in  the  year,  exclusive  of 
vacations,  and  be  taught  for  the  benefit  of  all  the  inhabitants 
of  the  town.  The  high  schools,  or  the  best  of  them,  serve 
the  double  purpose  of  fitting  for  college  and  giving  a  prep- 
aration for  life  more  extended  than  that  furnished  by  the 
common  schools. 

756.  Normal  Schools. — Massachusetts  founded  the  first 
State  normal  school,  in  1839.  There  are  in  this  country 
now  170  public  normal  schools.  State  and  local,  with  45,000 
students,  and  9,000  graduates  a  year.  Some  of  the  State 
schools  are  managed  by  the  State  boards  of  education,  and 
some  by  special  boards  of  trustees.  The  city  schools  are 
managed  by  the  local  boards  of  education  that  create  and 
maintain  them.  The  special  object  of  the  State  schools  is 
the  professional  education  of  teachers  for  the  schools  of  the 
State ;  of  the  local  schools,  similar  education  for  local  teach- 
ers. 

Pedagogical  professorships  exist  in  some  of  the  State 
universities,  as  in  those  of  Michigan,  Indiana,  Iowa,  Califor- 
nia, Minnesota  and  Wisconsin,  and  in  Cornell  University. 

757.  State  Universities. — Congress  has  given  Ohio 
three  townships  of  land,  Florida  and  Wisconsin  four  each, 
Minnesota  three  and  a  half,  and  the  other  public-land  States 
two  each  for  the  creation  and  support  of  universities.  The 
State  universities  of  these  States  were  founded  in  whole  or 
in  part  with  funds  derived  from  these  sources,  and  they  are 


STATE  EDUCATION.  413 

to-day  largely  supported  in  the  same  way.  Still  these  insti- 
tutions, or  most  of  them,  receive  assistance  from  the  State. 
Several  of  them  receive,  besides  appropriations  for  special 
objects,  the  proceeds  of  special  taxes.  The  University  of 
California  receives  a  tax  of  one  fifth  of  a  mill  on  each  dollar 
of  taxable  property  in  the  State,  the  University  of  Colorado 
two  fifths  of  a  mill,  and  the  University  of  Michigan  one 
fourth  of  a  mill. 

The  Universities  of  Virginia,  North  Carolina,  South  Carolina, 
Georgia,  and  West  Virginia,  all  of  them  State  institutions,  have  re- 
ceived no  assistance  from  the  national  government. 

758.  Agricultural  and  Mechanical  Colleges. — Congress 
passed  an  act  in  1862  granting  a  quantity  of  land,  or  in 
States  where  Congress  had  no  lands,  land-script,  equal  to 
30,000  acres  to  each  State,  for  each  Senator  and  Representa- 
tive in  Congress  to  which  it  was  entitled  under  the  census  of 
i860,  that  should,  subject  to  the  terms  of  the  act,  provide  a 
college  for  teaching  agriculture  and  the  mechanical  arts.  No 
part  of  the  proceeds  of  these  lands  or  of  the  interest  can  be 
applied  to  the  provision  of  buildings,  and  not  more  than  ten 
per  cent  thereof  to  the  purchase  of  building  sites.  All  of 
the  States  have  complied  with  the  terms  of  the  act,  or  are  in 
course  of  complying ;  some  by  creating  new  institutions,  and 
some  by  adding  new  departments  in  old  ones.  In  some 
States  the  funds  thus  arising  have  been  largely  supplemented 
from  other  sources,  public  or  private.  Congress  also  votes 
them  money  annually. 

II.    The  School  Administration. 

759.  Employment  of  the  State  Machinery. — To  a  con- 
siderable extent,  the  public  schools  are  administered  by 
officers  to  whom  other  branches  of  the  State  administration 
are  intrusted.  Mention  may  be  made  of  State  auditors 
(or  comptrollers)  and  treasurers,  county  auditors  and  treas- 
urers, and  of  township  clerks  and  treasurers.  But  an  ef- 
ficient school  system  requires  a  special  administrative  ma- 
chinerv,  both  State  and  local. 


414  THE  AMERICAN  GOVERNMENT. 

760.  State  Boards  of  Education. — Massachusetts  cre- 
ated the  first  State  board  of  education,  in  1837.  Many  of  the 
other  States,  but  not  all  of  them,  have  followed  this  example. 
The  Massachusetts  board  consists  of  the  governor,  the  lieu- 
tenant governor,  and  eight  other  persons  appointed  by  the 
governor  and  council  for  eight  years.  The  Michigan  board 
consists  of  the  State  superintendent,  and  three  other.members 
elected  by  the  State  at  large  for  six  years.  The  more  ef- 
ficient of  these  'boards  have  jurisdiction,  under  the  lav^^,  of 
questions  that  arise  in  the  administration  of  the  schools ;  the 
less  efficient  have  few  and  comparatively  unimportant  du- 
ties. Commonly  the  board  stands  in  a  directory  or  advisory 
relation  to  the  educational  executive  of  the  State. 

761.  State  Educational  Executive. — In  Massachusetts 
and  Connecticut,  the  State  educational  executive  is  elected, 
for  no  fixed  period,  by  the  State  board,  and  is  styled  the 
Secretary  of  the  Board  of  Education.  In  New  York  he  is 
styled  the  Commissioner  of  Education,  and  is  elected  by  the 
State  Board  of  Regents;  in  Rhode  Island.  Georgia,  and 
Ohio  he  is  styled  the  Commissioner  of  Schools,  and  in  most 
of  the  remaining  States,  the  Superintendent  of  Schools  or 
of  Public  Instruction.  He  is  appointed  by  the  governor  in 
Maine,  New  Hampshire,  New  Jersey,  Pennsylvania,  Mary- 
land, Tennessee,  and  Minnesota ;  in  most  of  the  other  States, 
with  the  exceptions  named  above,  he  is  elected  by  the  people. 
In  most  of  the  States  the  term  of  office  is  two,  three,  or 
four  years. 

In  some  States,  as  Pennsylvania,  the  Superintendent  is  the 
real  head  of  the  State  system  of  schools,  performing  nu- 
merous and  important  duties ;  but  in  others,  as  in  Ohio  and 
Michigan,  he  is  little  more  than  a  clerk  charged  with  the 
collection  and  publication  of  educational  statistics. 

762.  County  Boards. — Many  of  the  States  have  con- 
stituted county  boards  of  education.  Such  a  board  is  made 
up  of  representatives  of  the  townships  or  school  districts, 
who  are  also  charged  with  local  duties,  as  inspectors,  direct- 
ors, etc.     This  county  board  stands  to  the  schools  of  the 


STATE  EDUCATION.  415 

county  in  a  relation  similar  to  that  of  a  State  board  to  the 
schools  of  the  State. 

763.  County  Supervision. — In  many  of  the  States  there 
is  an  officer  to  oversee  the  schools  of  a  particular  district,  as 
the  county  or  some  similar  territorial  division.  Commonly 
he  is  called  a  superintendent,  but  in  New  York  and  Michi- 
gan, a  commissioner.  He  is  sometimes  elected  by  the  pop- 
ular vote,  sometimes  appointed  by  the  county  board.  In 
Virginia,  all  local  superintendents  are  appointed  by  the  State 
board  and  the  senate.  The  county  superintendent  visits 
schools,  confers  with  teachers  and  school  officers,  sees  that 
the  laws  are  observed,  and  frequently  examines  and  certifi- 
cates teachers.  Where  the  county  system  of  government 
prevails,  he  has  more  power  than  in  other  States.  Vermont 
is  the  only  New  England  State  that  has  established  county 
supervision. 

764.  Town  and  District  Administration. — Two  prin- 
cipal varieties  of  local  administration  are  found  in  the  dif- 
ferent States. 

1.  In  some  States  the  town  or  township  is  constituted  a 
school  district.  It  is  divided  for  school  provision  and  at- 
tendance, but  not  for  administration.  In  Massachusetts,  for 
example,  the  schools  of  the  town  district  are  controlled  by  a 
school  committee,  under  the  direction  of  the  town  meeting; 
in  Indiana,  by  the  township  trustee.  This  is  commonly 
called  the  township-unit  system. 

2.  Much  more  common  than  the  township  system  is  the 
district  system.  Here  the  school  districts,  into  which  the 
township  is  divided,  are  bodies  politic  and  corporate,  and 
elect  their  own  boards  of  school  managers,  called  school 
committees,  directors,  or  boards. 

765.  City  Administration. — Cities,  and  also  towns  of 
considerable  size,  generally  have  systems  of  schools  separate 
and  apart  from  those  of  the  townships  and  counties  in  which 
they  lie.  These  are  organized  under  provisions  of  the  school 
law  expressly  relating  to  such  cases,  or  under  special  char- 
ters granted  by  the  legislature.     Such  systems  are  controlled 


4l6  •  THE  AMERICAN  GOVERNMENT. 

by  a  local  board,  sometimes  appointed  by  the  mayor  or  the 
courts,  but  commonly  elected  by  the  people.  The  local  su- 
perintendent of  schools  is  the  executive  officer  of  the  board. 

766.  Certificating  Teachers. — Certificates  are  granted  to 
teachers  in  quite  different  ways  in  different  States.  State 
certificates  are  commonly  awarded  on  examination  by  some 
State  authority,  as  a  State  board  of  examiners.  Local  cer- 
tificates are  awarded,  also  on  examination,  by  the  town  school 
committee,  by  the  county  superintendent,  or  by  a  county 
board  of  examiners.  Cities  having  a  distinct  school  organ- 
ization ordinarily  have  their  own  examining  boards. 

It  would  be  easy  to  show  that  the  character  of  school  ad- 
ministration has  been  materially  influenced  by  the  character 
of  local  government,  as  the  town,  county,  or  mixed  system. 

III.    The  School  Support. 

767.  Public-Land  Endowments  of  Common  Schools. 

— The  Land  Ordinance  of  1785,  which  extended  to  all  lands 
that  had  been  ceded  to  the  United  States  and  relinquished  by 
the  Indian  tribes,  contained  in  outline  the  existing  system  of 
public-land  surveys  and  in  germ  the  system  of  public-land 
endowments  for  common  schools.  It  provided  for  the  sur- 
vey of  the  lands  into  townships  six  miles  square,  the  mile- 
square  sections  to  be  numbered  from  south  to  north  in 
ranges,  and  decreed :  "  There  shall  be  reserved  the  lot 
number  16  of  every  township  for  the  maintenance  of  public 
schools  in  the  said  township."  The  national  government 
never  owned  the  wild  lands  in  the  thirteen  original  States, 
in  new  States  formed  out  of  them,  and  in  Texas ;  but  in  all 
the  public-land  States,  beginning  with  Ohio  in  1802,  section 
No.  16  in  every  township,  has  been  dedicated  to  common 
schools.  Moreover,  since  1848  section  36  has  also  been  de- 
voted to  the  same  purpose.  The  title  to  these  lands  has  al- 
ways been  vested  in  the  State  legislatures  in  trust  for  the 
use  named  in  the  dedications,  and  the  proceeds  arising  from 
their  sale  constitute  permanent  funds,  the  interest  of  which 
is  applied  to  the  purpose  intended. 


STATE  EDUCATION* 


417 


A    CONGRESSIONAL    TOWNSHIP    ACCORDING    TO    THE    PRESENT    MODE    OF 
NUMBERING   SECTIONS. 


6 

5 

4 

3 

2 

1 

7 

8 

9 

10 

11 

12 

18 

17 

16 

15 

14 

13 

19 

20 

21 

22 

23 

24 

30 

29 

28 

27 

26 

25 

31 

32 

33 

34 

35 

36 

768.  The  Educational-Grant  Lands. — Previous  to  June  30, 
1883,  lands  had  been  granted  or  reserved  by  Congress  for  common 
schools  amounting  to  67,893,919  acres;  for  universities,  1,655,520 
acres;  for  agricultural  colleges,  9,600,000;  or  a  total  of  78,659,439 
acres.  Lands  and  moneys  that  Congress  has  given  the  States  with- 
out designating  any  particular  object  to  which  they  should  be  de- 
voted, have  in  many  instances  been  partly  or  wholly  applied  to  school 
purposes.  Mention  may  be  made  of  the  salt-lands,  swamp-lands, 
and  special  appropriations  of  500,000  acres  to  each  public-land  State 
coming  into  the  Union  since  1841,  percentages  on  lands  sold  within 
the  States,  and  the  United  States  Deposit  Fund  of  1836. 

769.  Funds  Provided  by  the  States. — Many  of  the 
States  that  did  not  share  in  the  bounty  of  Congress,  have 
provided  school  funds  out  of  their  own  resources,  Connecti- 
cut leading  the  way  in  1795.  Perhaps  the  largest  source 
of  such  funds  has  been  the  sale  of  lands  belonging  to  the 
States. 


4l8  THE  AMERICAN  GOVERNMENT. 

770.  School  Income. — The  school  income  is  derived 
from  a  variety  of  sources,  as  follows : 

1.  The  income  of  permanent  funds  or  endowments. 

2.  State  school  taxes.  These  are  levied  in  various  ways. 
Connecticut  levies  a  tax  on  the  property  of  the  State  amount- 
ing to  $2.25  for  every  person  between  the  ages  of  4  and  16 
years.  Pennsylvania  levies  a  lump  sum  of  $5,000,000 
or  more.  New  Jersey  levies  a  tax  of  two  and  three-fourths 
mills,  Ohio  and  Michigan  (fi  one  mill,  and  Nebraska  of  one 
and  one-half  mills,  on  the  dollar  upon  the  tax  duplicate  of  the 
State.  Indiana  votes  11  cents  and  Kentucky  22  cents  on 
every  $100  of  taxable  property  in  the  State,  Indiana  and  a 
number  of  other  States,  most  of  them  in  the  South,  levy  poll 
taxes  of  small  amounts  for  the  same  purpose. 

3.  Local  taxes.  In  most  States  the  great  resource  for 
school  support  is  taxes  imposed  by  the  local  authorities. 
These  local  taxes  are  of  several  kinds,  as  county,  township, 
city,  and  district  taxes.  There  is  in  some  States  a  growing 
tendency  to  depend  less  than  formerly  upon  local  taxes  and 
more  upon  State  taxes. 

4.  Miscellaneous.  There  are  a  variety  of  other  sources 
of  school  income.  Fines,  license  moneys,  penalties,  taxes  on 
banks,  etc.  are  used  for  school  purposes  in  some  States. 

771.  Modes  of  Distributing  Funds. — The  modes  of  distribut- 
ing school  funds  cannot  be  described  in  small  compass,  but  the  fol- 
lowing points  may  be  noted : 

1.  In  the  first  States  receiving  lands  from  Congress  for  common 
schools,  each  congressional  township  has  its  own  special  fund  arisingf 
from  its  own  section;  but  in  the  later  States,  beginning  with  Michi- 
gan, in  1837,  there  is  one  consolidated  fund  from  which  distribution 
is  made  to  the  counties  and  townships. 

2.  The  common  mode  of  distributing  the  State  funds,  no  matter 
from  what  source  they  come,  with  the  above  modification,  is  for  the 
State  to  distribute  to  the  counties,  and  the  counties  to  the  townships 
or  districts,  according  to  the  number  of  persons  between  certain 
specified  ages,  as  4  and  16,  s  and  18,  or  6  and  21. 

3.  It  is  not  uncommon  to  pay  over  funds  arising  from  special 
sources,  as  fines  and  licenses,  to  the  county,  township,  or  city  in 
which  they  are  collected. 


STATE  EDUCATION.  419 

772.  Free  Schools. — Formerly  even  the  so-called  public 
schools  were  supported  in  part  by  means  of  rate  bills,  or  tuition 
charges,  assessed  upon  those  who  used  the  schools.  But  such  fees 
are  now  almost  wholly,  if  not  wholly,  unknown  in  the  United  States. 
Charges  are  sometimes  made  for  instruction  in  higher  branches  in 
high  schools,  and  in  universities,  but  the  State  common  schools  are 
now  practically  free.  The  principle  is  generally  admitted  that  the 
property  of  the  State  should  educate  the  youth  of  the  State.  It  has, 
however,  been  found  necessary  in  most  States  to  protect  the  public 
schools  and  school  funds  against  sectarian  religious  zeal.  Both  these 
ends  the  constitution  of  Ohio  secures  by  this  provision :  "  The  Gen- 
eral Assembly  shall  make  such  provision,  by  taxation  or  otherwise, 
as,  with  the  interest  arising  from  the  school  trust-fund,  will  secure  a 
thorough  and  efficient  system  of  common  schools  throughout  the 
State,  but  no  religious  or  other  sect  or  sects  shall  ever  have  any 
exclusive  right  to,  or  control  of,  any  part  of  the  school  funds  of  the 
State." 

Note. —  It  is  a  very  common  misapprehension  that  the  educational  land 
grant  policy  of  the  national  government  originated  in  the  Ordinance  of  1787. 
That  document  is  wholly  silent  on  the  subject  of  educational  lands.  The 
misapprehension  has  arisen  from  confounding  this  ordinance  with  earlier 
legislation.  The  ordinance  says  in  respect  to  education  -merely  that  schools 
and  means  of  education  shall  forever  be  encouraged.  Grants  for  common 
school  purposes  are  first  heard  of  in  the  Land  Ordinance  of  1785,  and 
university  grants  in  the  sale  to  the  Ohio  Company  in  1787.  Both  of  these 
acts  of  legislation  were  of  merely  local  application.  But  they  recogtnized 
the  principle  of  educational  land  grants,  and  this  principle  has  been  pro- 
gressively applied  to  every  public-land  State  on  or  before  its  admission  to 
the  Union.  The  grants  are  not  traceable  to  any  single  act  of  legislation, 
but  have  been  made  in  single  acts  of  specific  application. — See  Report  of  the 
Commissioner  of  Education,  1892-93,  Vol.  II,  pp.  1268-1288,  for  an  historical 
and   statistical   view  of  the  subject 


CONCLUSION. 
NATURE  OF  THE  AMERICAN  GOVERNMENT. 

773.  The  United  States  a  Federal  Republic. —  From 
the  beginning  of  colonial  history,  government  in  the  United 
States  has  been  dual.  From  the  beginning,  also,  it  has  been 
largely  republican,  and  since  1776  wholly  so.  Accordingly, 
the  United  States  are  a  federal  state,  or,  more  narrowly,  a 
federal  republic.  Again,  government,  both  National  and 
State,  is  constitutional ;  in  no  other  country  is  so  much 
stress  laid  on  written  constitutions.  A  prescriptive  consti- 
tution may  be  better  for  England,  but  nothing  short  of  writ- 
ten constitutions,  ordained  in  the  most  formal  and  solemn 
manner,  would  satisfy  the  American  people.  The  central 
idea  of  the  English  constitution  —  the  sovereignty  of  Par- 
liament —  is  thoroughly  repugnant  to  them. 

774.  Features  of  Federal  States. —  Federal  states  are  of 
several  classes,  but  the  class  to  which  the  United  States  be- 
long presents  the  following  features : 

^  Each  member  of  the  union  is  wholly  independent  of  the 
other  members  and  of  the  union  in  all  matters  which  con- 
cern itself  only,  but  is  subject  to  the  national  government  in 
all  matters  which  concern  the  members  collectively.  In  its 
own  sphere  it  is  wholly  independent  and  sovereign ;  in  the 
national  sphere,  it  has  no  independence  or  sovereignty  what- 
ever. It  makes  its  own  constitution  and  enacts  and  executes 
its  own  laws ;  but  this  constitution  and  these  laws  must  be  in 
conformity  with  the  national  constitution  and  laws. 

775.  Origin  of  Federal  States. —  Federal  states  are  al- 
most always  formed  by  integration,  rarely  by  disintegration. 

They  commonly  result  from  uniting  states  partly  or  wholly 

(420) 


NATURE  OF  THE  AMERICAN  GOVERNMENT.     421 

independent,  not  from  dividing  states  before  consolidated. 
This  is  shown  by  the  names  appHed  to  them:  federation, 
confederation,  and  union.  Of  this  process  no  better  example 
can  be  given  than  the  origin  of  the  United  States  as  traced 
in  Part  I.  of  this  work. 

776.  Advantages  of  Federal  States. — Federal  states, 
when  they  work  successfully,  combine  in  large  measure  the 
advantages  that  are  claimed  for  large  and  small  states  re- 
spectively. These  are  strength,  permanence,  and  freedom 
from  internal  strife  and  faction,  on  the  one  hand ;  the  adap- 
tation of  government  to  local  wants,  liberty,  and  high  polit- 
ical intelligence  and  public  spirit,  on  the  other.  If  it  is  held 
that  federal  states  do  not  combine  these  excellences  in  the 
highest  degree,  the  reply  may  be  made  that  they  do  avoid  the 
peculiar  dangers  of  large  and  small  consolidated  states,  op- 
pression and  local  strffe. 

777.  Disadvantages. —  The  principal  disadvantages  of  a 
federal  state  arise  from  the  complexity  of  its  machinery ;  to 
adjust  the  two  jurisdictions,  or  what  Mr.  Bryce  calls  the 
two  loyalties  and  the  two  patriotisms,  in  a  manner  to  avoid 
friction  and  to  secure  harmony  and  efficiency,  is  one  of  the 
most  difficult  of  political  problems.  Dr.  E.  A.  Freeman, 
the  distinguished  historian  of  federal  government,  says : 
"  The  federal  idea,  in  its  highest  and  most  elaborate  develop- 
ment, is  the  most  finished  and  the  most  artificial  produc- 
tion of  political  ingenuity.  It  is  hardly  possible  that  federal 
government  can  attain  its  perfect  form  except  in  a  highly 
refined  age,  and  among  a  people  whose  political  education 
has  already  stretched  over  many  generations.  .  .  .  That 
ideal  is  so  very  refined  and  artificial  that  it  seems  not  to 
have  been  attained  more  than  four  or  five  times  in  the  his- 
tory of  the  world."  * 

778.  The  Dual  Constitution  of  the  United  States. — 
Judge  Jameson  says :  "  And  here  I  may  remark  that  the 
Constitution  of  the  United  States  is  a  part  of  the  constitu- 

*  History  of  Federal  Government,  pp.  3,  4. 


422  THE  AMERICAN  GOVERNMENT. 

tion  of  each  State,  whether  referred  to  in  it  or  not,  and  that 
the  consitutions  of  all  the  States  form  a  part  of  the  Constitu- 
tion of  the  United  States.  An  aggregation  of  all  these  con- 
stitutional instruments  would  be  precisely  the  same  in  prin- 
ciple as  a  single  constitution,  which,  framed  by  the  people  of 
the  Union,  should  define  the  powers  of  the  General  Govern- 
ment, and  then  by  specific  provisions  erect  the  separate  gov- 
ernments of  the  States,  with  all  their  existing  attributions 
and  limitations  of  power."  ^ 

779.  Relations  of  the  Two  Systems. — Neither  part  of 
this  complicated  system  is  a  complete  government;  neither 
one  can  be  understood  without  the  other;  each  one  is  es- 
sential to  the  other,  and  to  society,  and  neither  one  is  more 
essential  than  the  other.  The  citizen  is  always  subject  to 
two  jurisdictions.  Were  the  National  jurisdiction  destroyed, 
he  would  have  no  protection  against  foreign  powers.  Were 
the  State  jurisdiction  withdrawn,  he  would  be  at  the  mercy 
of  internal  faction  and  anarchy.  The  Nation  might  assume 
the  powers  of  the  States,  the  States  might  become  independ- 
ent nations ;  or,  as  Jameson  puts  it,  the  American  people 
might  melt  down  their  forty-five  constitutions,  and  cast  the 
material  into  a  new  mold,  thus  constituting  a  consolidated 
system  like  that  of  France.  But  were  they  to  do  this,  they 
would  destroy  the  characteristic  features  of  their  political 
system,  and  sacrifice  those  political  functions  upon  which 
they  have  always  most  prided  themselves. 

780.  Relative  Prominence  of  the  Two  Jurisdictions. — 
The  relative  prominence  of  the  States  and  the  Nation  has 
undergone  considerable  change  since  1776.  At  first  the 
Union  was  more  conspicuous  than  the  States ;  but  when  the 
States  reorganized  their  governments,  and  especially  when 
Congress  fell  into  contempt  at  the  close  of  the  Revolution, 
the  States  quite  overshadowed  the  Union.  With  the  Consti- 
tution, the  Union  assumed  a  new  importance,  which  slow- 
ly increased  down  to  the  Civil  War;  that  event  gave  it  a 

•  The  Constitutional  Convention,  p.  87. 


NATURE  OF  THE  AMERICAN  GOVERNMENT.     423 

place  which  it  had  never  had  before,  and  which  it  is  not 
likely  to  lose.^ 

781.  Nature  of  the  National  Government. — As  re- 
marked in  various  chapters,  there  has  been  much  disputing 
whether  the  national  Constitution  established  a  State  system 
or  a  National  system.  It  is  strictly  neither  a  National  nor 
a  State  system,  but  a  combination  of  the  two.  In  its  foun- 
dation the  Constitution  is  partly  National  and  partly  State, 
because  ratified  by  the  people,  but  by  the  people  as  constitut- 
ing thirteen  States  and  not  one  consolidated  nation.  In  the 
sources  of  its  powers,  it  is  partly  National  and  partly  State, 
because  one  branch  of  the  legislature  represents  the  people, 
and  one  the  States,  while  the  two  elements  blend  in  the 
election  of  the  executive.  In  the  operation  of  its  powers  — 
which  was  the  great  defect  of  the  Confederation  —  it  is  Na- 
tional and  not  State,  because  it  acts  on  the  people  as  individ- 
uals and  not  as  States.  In  the  extent  of  its  powers  it  is 
partly  National  and  partly  State,  because  the  powers  granted 
are  limited  in  number,  leaving  a  great  mass  of  powers  to  the 
people  and  to  the  States,  but  unlimited  in  application.  In 
the  mode  of  amendment  it  is  neither  wholly  State  nor  wholly 
National,  because  both  houses  of  Congress  and  the  State 
legislatures  are  necessary  to  eflFect  amendments.^ 

782.  Complexity  of  the  System. — Perhaps  there  is  no 
government  in  the  world  that  is  more  difficult  to  explain  in- 
telligently, and  particularly  to  foreigners,  than  the  American 
Government.  John  Quincy  Adams  called  it  a  "  complicated 
machine" ;  "it  is  an  anomaly,"  said  he,  "in  the  history  of  the 
world.  It  is  that  which  distinguishes  us  from  all  other  na- 
tions, ancient  and  modern."     No  other  government  is  so 


'  In  1795  John  Jay  resigned  the  office  of  Chief  Justice  to  accept  the  gov- 
ernorship of  New  York,  and  in  i8oo  declined  a  second  appointment,  assigning 
this  reason:  "I  left  the  bench  perfectly  convinced  that  under  a  system  so 
defective  it  would  not  obtain  the  energy,  weight,  and  dignity  which  was 
essential  to  its  affording  support  to  the  national  government;  nor  acquire  the 
public  confidence  and  respect  which  as  the  last  resort  of  the  justice  of  the 
nation  it  should   possess." — Pellew:    John  Jay,  pp.   337,   338. 

*  See  The  Federalist,  No.  35- 


424  THE  AMERICAN  GOVERNMENT. 

highly  specialized.  It  combines  the  complexities  of  both  the 
dual  and  the  republican  systems.  But  complexity  of  govern- 
mental machinery  appears  to  be  essential  to  liberty.  With  a 
brief  passage  from  Mr.  Webster  touching  this  point,  this 
work  may  fitly  close. 

"  Nothing  is  more  deceptive  or  more  dangerous  than  the 
pretense  of  a  desire  to  simplify  government.  The  simplest 
governments  are  despotisms ;  the  next  simplest,  limited  mon- 
archies; but  all  republics,  all  governments  of  law,  must  im- 
pose numerous  limitations  and  qualifications  of  authority, 
and  give  many  positive  and  many  qualified  rights.  .  .  . 
Every  free  government  is  necessarily  complicated,  because  all 
such  governments  establish  restraints,  as  well  on  the  power 
of  government  itself  as  on  that  of  individuals.  If  we  will 
abolish  the  distinction  of  branches,  and  have  but  one  branch ; 
if  we  will  abolish  jury  trials,  and  leave  all  to  the  judge;  if 
we  will  then  ordain  that  the  legislator  shall  himself  be  that 
judge;  and  if  we  will  place  the  executive  power  in  the  same 
hands,  we  may  readily  simplify  government.  We  may  easily 
bring  it  to  the  simplest  of  all  possible  forms,  a  pure  despot- 
ism. But  a  separation  of  departments,  so  far  as  practicable, 
and  the  preservation  of  clear  lines  of  division  between  them, 
is  the  fundamental  idea  in  the  creation  of  all  our  constitu- 
tions ;  and,  doubtless,  the  continuance  of  regulated  liberty 
depends  on  the  maintaining  of  these  boundaries."  ^ 

•  Works,  Vol.  4,  p.   122. 


APPENDIX. 


DOCUMENTS  ILLUSTRATIVE  OF  THE  GROWTH  OF 
THE  AMERICAN  UNION. 

"  The  most  ingenious  and  the  most  eloquent  of  modern  historical 
discourses  can,  after  all,  be  nothing  more  than  a  comment  on  a  text." 

— Dr.  E.  a.  Freeman. 

L    THE    MAYFLOWER   COMPACT.— 1620. 

This  compact  was  signed  by  the  whole  body  of  men,  forty- 
one  in  number,  belonging  to  the  Pilgrim  company,  on  board 
the  Mayflower,  December  11,  1620,  the  day  before  the  land- 
ing at  Plymouth.  Although  not  strictly  germane  to  the  gen- 
eral subject  of  these  documents,  it  is  introduced  here  as  it  is 
so  frequently  referred  to  in  books  on  government.  See 
Bancroft,  Hist.  U.  S.,  Vol.  L,  p.  205,  last  edition ;  Hildreth, 
Hist.  U.  S.,  Vol.  L,  p.  158;  Palfrey,  Hist.  New  England, 
Vol.  L,  p.  162;  Frothingham,  Rise  of  the  Republic,  p.  15; 
and  The  American  Government,  Chap.  L 

In  the  name  of  God,  Amen ;  We,  whose  names  are  underwritten, 
the  loyal!  subjects  of  our  dread  soveraigne,  King  James,  by  the  grace 
of  God,  of  Great  Britaine,  France,  and  Ireland  King,  defender  of  the 
faith,  etc.,  haveing  undertaken,  for  the  glorie  of  God,  and  advance- 
mente  of  the  Christian  faith  and  honor  of  our  king  and  countrie,  a 
voyage  to  plant  the  first  colonie  in  the  Northerne  parts  of  Virginia, 
doe,  by  these  presents,  solemnly  and  mutually,  in  the  presence  of 
God,  and  one  of  another,  covenant  and  combine  ourselves  together 
into  a  civil  body  politick,  for  our  better  ordering  and  preservation 
and  furtherance  of  the  ends  aforesaid ;  and,  by  vertue  heareof,  to 
enacte,  constitute,  and  frame,  such  just  and  equall  laws,  ordenances, 
acts,  constitutions  and  offices,  from  time  to  time,  as  shall  be  thought 
most  meete  and  convenient  for  the  generall  good  of  the  Colonie. 
Unto  which  we  promise  all  due  submission  and  obedience.  In  wit- 
nes  whereof  we  have  hereunder  subscribed  our  names,  at  Cap  Codd, 

(425) 


426  THE  AMERICAN  GOVERNMENT. 

the  nth  of  November,  in  the  year  of  the  raigne  of  our  sovereigne 
lord,  King  James,  of  England,  France,  and  Ireland  the  eighteenth, 
and  of  Scotland  the  fifty-fourth.  Anno  Domini,  1620. 

II.    THE  NEW  ENGLAND  CONFEDERATION.— 1643. 

The  New  England  Confederation  was  formed  for  protec- 
tion against  the  Dutch  on  the  Hudson  River  and  the  Indians. 
The  original  suggestion  came  from  Connecticut  in  1637. 
The  commissioners  of  Massachusetts  Bay,  Connecticut,  and 
New  Haven  signed  the  articles  May  19,  1643.  Plymouth 
gave  her  approval  later.  Rhode  Island  was  refused  admis- 
sion to  the  league  for  religious  reasons.  The  United  Col- 
onies of  New  England  were,  therefore,  four  in  number ;  they 
comprised  at  the  time  the  confederation  was  formed  thirty- 
nine  towns  and  24,000  people.  The  union  of  Connecticut 
and  New  Haven  in  1662  destroyed  the  balance  of  power. 
The  last  meeting  of  the  commissioners  was  held  at  Hart- 
ford, September  5,  1684.  The  English  historian  Chalmers 
says  this  confederation  "  offers  the  first  example  of  coalition 
in  colonial  story,  and  showed  to  party  leaders  in  after  times 
the  advantages  of  concert."  See  Palfrey,  Vol.  I.,  p.  623; 
Bancroft,  Vol.  L,  p.  289;  Hildreth,  Vol.  I.,  p.  285;  Froth- 
ingham,  p.  39 ;  The  American  Government,  Chap.  IV. 

Articles  of  Confederation. 

Betweene  the  plantations  vnder  the  Gouernment  of  the  Massachu- 
setts, the  Plantacons  vnder  the  Gouernment  of  New  Plymouth, 
the  Plantacons  vnder  the  Gouernment  of  Connectacutt,  and  the 
Gouernment  of  New  Haven  with  the  Plantacons  in  combinacon 
therewith. 

Whereas  wee  all  came  into  these  parts  of  America  with  one  and 
the  same  end  and  ayme,  namely,  to  advaunce  the  kingdome  of  our 
Lord  Jesus  Christ,  and  to  enjoy  the  liberties  of  the  Gospel!  in  puritie 
with  peace.  And  whereas  in  our  settleinge  (by  a  wise  Providence  of 
God)  we  are  further  dispersed  vpon  the  Sea  Coasts  and  Riuers  then 
was  at  first  intended,  so  that  we  cannot  according  to  our  desire,  with 
convenience,  communicate  in  one  Gouernment  and  Jurisdiccon. 
And  whereas  we  live  encompassed  with  people  of  seuerall  Nations 
and  Strang  languages  which  heareafter  may  proue  injurious  to  vs  or 
our  posteritie.    And  forasmuch  as  the  Natives  have  formerly  com- 


NEW  ENGLAND  CONFEDERATION.      427 

mitted  sondry  insolences  and  outrages  vpon  seueral  Plantacons  of  the 
English  and  have  of  late  combined  themselues  against  vs.  And 
seing  by  reason  of  those  sad  Distraccons  in  England,  which  they 
have  heard  of,  and  by  which  they  know  we  are  hindred  from  that 
humble  way  of  seekinge  advise  or  reapeing  those  comfortable  fruits 
of  protection  which  at  other  tymes  we  might  well  expecte.  Wee 
therefore  doe  conceiue  it  our  bounden  Dutye  without  delay  to  enter 
intq  a  present  consotiation  amongst  ourselues  for  mutual  help  and 
strength  in  all  our  future  concernements :  That  as  in  Nation  and 
Religion,  so  in  other  Respects  we  bee  and  continue  one  according  to 
the  tenor  and  true  meaninge  of  the  ensuing  Articles :  Wherefore  it 
is  fully  agreed  and  concluded  by  and  betweene  the  parties  or  Juris- 
diccons  aboue  named,  and  they  j6yntly  and  seuerally  doe  by  these 
presents  agreed  and  concluded  that  they  all  bee,  and  henceforth  bee 
called  by  the  Name  of  the  United  Colonies  of  New-England. 

II.  The  said  United  Colonies,  for  themselues  and  their  poster- 
ities, do  joyntly  and  seuerally,  hereby  enter  into  a  firme  and  perpet- 
uall  league  of  friendship  and  amytie,  for  offence  and  defence,  mutuall 
advise  and  succour,  vpon  all  just  occations,  both  for  preserueing  and 
propagateing  the  truth  and  liberties  of  the  Gospel,  and  for  their  owne 
mutuall  safety  and  well  fare. 

III.  It  is  further  agreed  That  the  Plantacons  which  at  present  are 
or  hereafter  shalbe  settled  within  the  limmetts  of  the  Massachusetts, 
shalbe  forever  vnder  the  Massachusetts,  and  shall  have  peculiar  Juris- 
diccon  among  themselues  in  all  cases  as  an  entire  Body,  and  that 
Plymcfuth,  Connecktacutt,  and  New  Haven  shall  eich  of  them  haue 
like  peculier  Jurisdiccon  and  Gouernment  within  their  limmetts 
and  in  referrence  to  the  Plantacons  which  already  are  settled  or 
shall  hereafter  be  erected  or  shall  settle  within  their  limmetts  respec- 
tiuely;  prouided  that  no  other  Jurisdiccon  shall  hereafter  be  taken 
in  as  a  distinct  head  or  member  of  this  Confederacon,  nor  shall  any 
other  Plantacon  or  Jurisdiccon  in  present  being  and  not  already  in 
combynacon  or  vnder  the  Jurisdiccon  of  any  of  these  Confederats 
be  received  by  any  of  them,  nor  shall  any  two  of  the  Confederats 
joyne  in  one  Jurisdiccon  without  consent  of  the  rest,  which  consent 
to  be  interpreted  as  is  expressed  in  the  sixth  Article  ensuinge. 

IV.  It  is  by  these  Confederats  agreed  that  the  charge  of  all  just 
warrs,  whether  ofFensiue  or  defensiue,  upon  what  part  or  member 
of  this  Confederaccon  soever  they  fall,  shall  both  in  men  and  provi- 
sions, and  all  other  Disbursements,  be  borne  by  all  the  parts  of  this 
Confederacon,  in  different  proporcons  according  to  their  different 
abilitie,  in  manner  following,  namely,  that  the  Commissioners  for 
eich  Jurisdiccon  from  tyme  to  tyme,  as  there  shalbe  occation,  bring  a 
true  account  and  number  of  all  the  males  in  every  Plantacon,  or  any 


428  THE  AMERICAN  GOVERNMENT. 

way  belonging  to,  or  under  their  seuerall  Jurisdiccons,  of  what  quality 
or  condicion  soeuer  they  bee,  from  sixteene  yeares  old  to  threescore, 
being  Inhabitants  there.  And  That  according  to  the  different  num- 
bers which  from  tyme  to  tyme  shalbe  found  in  eich  Jurisdiccon,  upon 
a  true  and  just  account,  the  service  of  men  and  all  charges  of  the 
warr  be  borne  by  the  Poll :  Eich  Jurisdiccon,  or  Plantacon,  being 
left  to  their  owne  just  course  and  custome  of  rating  themselues  and 
people  according  to  their  different  estates,  with  due  respects  to  their 
qualities  and  exemptions  among  themselues,  though  the  Confeder- 
acon  take  no  notice  of  any  such  priviledg:  And  that  according  to 
their  different  charge  of  eich  Jurisdiccon  and  Plantacon,  the  whole 
advantage  of  the  warr  (if  it  please  God  to  bless  their  Endeavors) 
whether  it  be  in  lands,  goods  or  persons,  shall  be  proportionably 
deuided  among  the  said  Confederats. 

V.  It  is  further  agreed  That  if  any  of  these  Jurisdiccons,  or  any 
Plantacons  vnder  it,  or  in  any  combynacon  with  them  be  envaded  by 
any  enemie  whomsoeuer,  upon  notice  and  request  of  any  three  majes- 
trats  of  that  Jurisdiccon  so  invaded,  the  rest  of  the  Confederates 
without  any  further  meeting  or  expostulacon,  shall  forthwith  send 
ayde  to  the  Confederate  in  danger,  but  in  different  proporcons, 
namely,  the  Massachusetts  an  hundred  men  sufficiently  armed  and 
provided  for  such  a  service  and  jorney,  and  eich  of  the  rest  fourtyJ^ 
fine  so  armed  and  provided,  or  any  lesse  number,  if  lesse  be  required, 
according  to  this  proporcon.  But  if  such  Confederate,  in  danger  may 
be  supplyed  by  their  next  Confederate,  not  exceeding  the  number 
hereby  agreed,  they  may  craue  help  there,  and  seeke  no  further  for 
the  present.  The  charge  to  be  borne  as  in  this  Article  is  exprest: 
And,  at  the  returne,  to  be  victualled  and  supplyed  with  poder  and 
shott  for  their  journey  (if  there  be  neede)  by  that  Jurisdiccon  which 
employed  or  sent  for  them :  But  none  of  the  Jurisdiccons  to  exceed 
these  numbers  till  by  a  meeting  of  the  Commissioners  for  this  Con- 
federacon  a  greater  ayd  appeare  necessary.  And  this  proporcon  to 
continue,  till  upon  knowledge  of  greater  numbers  in  eich  Jurisdiccon 
which  shalbe  brought  to  the  next  meeting  some  other  proporcon  be 
ordered.  But  in  any  such  case  of  sending  men  for  present  ayd 
whether  before  or  after  such  order  or  alteracon,  it  is  agreed  that  at 
the  meeting  of  the  Commissioners  for  this  Confederacon,  the  cause 
of  such  warr  or  invasion  be  duly  considered :  And  if  it  appeare  that 
the  fault  lay  in  the  parties  so  invaded,  that  then  that  Jurisdiccon  or 
Plantacon  make  just  Satisfaccon,  both  to  the  Invaders  whom  they 
have  injured,  and  beare  all  the  charges  of  the  warr  themselves  with- 
out requireing  any  allowance  from  the  rest  of  the  Confederats 
towards  the  same.  And  further,  that  if  any  Jurisdiccon  see  any  dan- 
ger of  any  Invasion  approaching,  and  there  be  tyme  for  a  meeting, 


NEW  ENGLAND  CONFEDERATION.  429 

that  in  such  case  three  majestrats  of  that  Jurisdiocon  may  summon  a 
meeting  at  such  convenyent  place  as  themselues  shall  think  meete, 
to  consider  and  provide  against  the  threatned  danger,  Provided  when 
they  are  met  they  may  remoue  to  what  place  they  please,  Onely 
whilst  any  of  these  foure  Confederats  have  but  three  majestrats  in 
their  Jurisdiccon,  their  request  or  summons  from  any  two  of  them 
shalbe  accounted  of  equall  force  with  the  three  mentoned  in  both  the 
clauses  of  this  Article,  till  there  be  an  increase  of  majestrats  there. 

VI.  It  is  also  agreed  that  for  the  mannaging  and  concluding  of  all 
affairs  proper  and  concerneing  the  whole  confederacon  two  Commis- 
sioners shalbe  chosen  by  and  out  of  eich  of  these  foure  Jurisdiccons, 
namely,  two  for  the  Mattachusetts,  two  for  Plymouth,  two  for  Con- 
nectacutt  and  two  for  New  Haven ;  being  all  in  Church  fellowship 
with  us,  which  shall  bring  full  power  from  their  seurall  generall 
Courts  respectively  to  heare,  examine,  weigh  and  determine  all 
affairs  of  our  warr  or  peace,  leagues,  ayds,  charges  and  numbers  of 
men  for  warr,  divission  of  spoyles  and  whatsoever  is  gotten  by  con- 
quest, receiueing  of  more  Confederats  for  plantacons  into  combinacon 
with  any  of  the  Confederates,  and  all  thinges  of  like  nature  which  are 
the  proper  concomitants  or  consequence  of  such  a  confederacon,  for 
amytie,  offence  and  defence,  not  intermeddleing  with  the  gouernment 
of  any  of  the  Jurisdiccons  which  by  the  third  Article  is  preserued 
entirely  to  themselves.  But  if  these  eight  Commissioners,  when  they 
meete,  shall  not  all  agree,  yet  it  is  concluded  that  any  six  of  the 
eight  agreeing  shall  have  power  to  settle  and  determine  the  business 
in  question :  But  if  six  do  not  agree,  that  then  such  proposi(!ons  with 
their  reasons,  so  farr  as  they  have  beene  debated,  be  sent  and  referred 
to  the  foure  generall  Courts,  vizt.  the  Mattachusetts,  Plymouth, 
Connectacutt,  and  New  Haven :  And  if  at  all  the  said  Generall 
Courts  the  businesse  so  referred  be  concluded,  then  to  bee  prosecuted 
by  the  Confederates  and  all  their  members.  It  is  further  agreed  that 
these  eight  Commissioners  shall  meete  once  every  yeare,  besides 
extraordinary  meetings  (according  to  the  fift  Article)  to  consider, 
treate  and  conclude  of  all  affaires  belonging  to  this  Confederacon, 
which  meeting  shall  ever  be  the  first  Thursday  in  September.  And 
that  the  next  meeting  after  the  date  of  these  presents,  which  shalbe 
accounted  the  second  meeting,  shalbe  at  Bostone  in  the  Massachu- 
setts, the  third  at  Hartford,  the  fourth  at  New  Haven,  the  fift  at 
Plymouth,  the  sixt  and  seaventh  at  Bostone.  And  then  Hartford, 
New  Haven  and  Plymouth,  and  so  in  course  successiuely,  if  in  the 
meane  tyme  some  middle  place  be  not  found  out  and  agreed  on  which 
may  be  commodious  for  all  the  jurdisdiccons. 

VII.  It  is  further  agreed  that  at  eich  meeting  of  these  eight  Com- 
missioners, whether  ordinary  or  extraordinary,  they,  or  six  of  them 


430  THE  AMERICAN  GOVERNMENT. 

agreeing  as  before,  may  choose  their  President  out  of  themselues, 
whose  office  and  \yorke  shalbe  to  take  care  and  direct  for  order  and  a 
comely  carrying  on  of  all  proceedings  in  the  present  meeting.  But 
he  shalbe  invested  with  no  such  power  or  respect  as  by  which  he 
shall  hinder  the  propounding  or  progresse  of  any  businesse,  or  any 
way  cast  the  Scales,  otherwise  than  in  the  precedent  Article  is  agreed. 

VIII.  It  is  also  agreed  that  the  Commissioners  for  this  Confeder- 
acon  hereafter  at  their  meetings,  whether  ordinary  or  extraordinary, 
as  they  may  have  commission  or  opertunitie,  do  endeavoure  to  frame 
and  establish  agreements  and  orders  in  generall  cases  of  a  civill 
nature  wherein  all  the  plantacons  are  interested  for  preserving  peace 
among  themselues,  and  preventing  as  much  as  may  bee  all  occations 
of  warr  or  difference  with  others,  as  about  the  free  and  speedy  pass- 
age of  Justice  in  every  Jurisdiccon,  to  all  the  Confederats  equally  as 
their  owne,  receiving  those  that  remoue  from  one  plantacon  to  an- 
other without  due  certefycats ;  how  all  the  Jurisdiccons  may  carry  it 
towards  the  Indians,  that  they  neither  grow  insolent  nor  be  injured 
without  due  satisfaccon,  lest  warr  break  in  vpon  the  Confederates 
through  such  miscarryage.  It  is  also  agreed  that  if  any  servant  runn 
away  from  his  master  into  any  other  of  these  confederated  Jurisdic- 
cons, That  in  such  Case,  vpon  the  Certyficate  of  one  Magistrate  In  the 
Jurisdiccon  out  of  which  the  said  servant  fled,  or  upon  other  due 
proofe,  the  said  servant  shalbe  deliuered  either  to  his  Master  or  any 
other  that  pursues  and  brings  such  Certificate  or  proofe.  And  that 
vpon  the  escape  of  any  prisoner  whatsoever  or  fugitiue  for  any  crim- 
inal cause,  whether  breaking  prison  or  getting  from  the  officer  or 
otherwise  escaping,  upon  the  certificate  of  two  Majistrats  of  the 
Jurisdiccon  out  of  which  the  escape  is  made  that  he  was  a  prisoner  or 
such  an  offender  at  the  tyme  of  the  escape.  The  Majestrates  or  some 
of  them  of  that  Jurisdiccon  where  for  the  present  the  said  prisoner  or 
fugitive  abideth  shall  forthwith  graunt  such  a  warrant  as  the  case 
will  beare  for  the  apprehending  of  any  such  person,  and  the  delivery 
of  him  into  the  hands  of  the  officer  or  other  person  that  pursues  him. 
And  if  there  be  help  required  for  the  safe  returneing  of  any  such 
offender,  then  it  shalbe  graunted  to  him  that  craves  the  same,  he 
paying  the  charges  thereof. 

IX.  And  for  that  the  justest  warrs  may  be  of  dangerous  conse- 
quence, espetially  to  the  smaler  plantacons  in  these  vnited  Colonies, 
it  is  agreed  that  neither  the  Massachusetts,  Plymouth,  Connectacutt 
nor  New-Haven,  nor  any  of  the  members  of  any  of  them  shall  at  any 
tyme  hereafter  begin,  undertake,  or  engage  themselues  or  this  Con- 
federacon,  or  any  part  thereof  in  any  warr  whatsoever  (sudden 
exegents  with  the  necessary  consequents  thereof  excepted)  which  are 
also  to  be  moderated  as  much  as  the  case  will  permit,  without  the 


NEW  ENGLAND  CONFEDERATION.  431 

consent  and  agreement  of  the  forenamed  eight  Commissioners,  or  at 
least  six  of  them,  as  in  the  sixt  Article  is  provided :  And  that  no 
charge  be  required  of  any  of  the  Confederate  in  case  of  a  defensiue 
warr  till  the  said  Commissioners  haue  mett  and  approued  the  justice 
of  the  warr,  and  have  agreed  vpon  the  sum  of  money  to  be  levyed, 
which  sum  is  then  to  be  payd  by  the  severall  Confederates  in  pro- 
porcon  according  to  the  fourth  Article. 

X.  That  in  extraordinary  occations  when  meetings  are  summoned 
by  three  Majistrats  of  any  Jurisdiccon,  or  two  as  in  the  fift  Article, 
If  any  of  the  Commissioners  come  not,  due  warneing  being  given  or 
sent,  It  is  agreed  that  foure  of  the  Commissioners  shall  have  power 
to  direct  a  warr  which  cannot  be  delayed  and  to  send  for  due  propor- 
cons  of  men  out  of  eich  Jurisdiccon,  as  well  as  six  might  doe  if  all 
mett;  but  not  less  than  six  shall  determine  the  justice  of  the  warr  or 
allow  the  demaunde  of  bills  of  charges  or  cause  any  levies  to  be  made 
for  the  same. 

XL  It  is  further  agreed  that  if  any  of  the  Confederates  shall  here- 
after break  any  of  these  present  Articles,  or  be  any  other  wayes  inju- 
ripus  to  any  one  of  thother  Jurisdiccons,  such  breach  of  Agreement, 
or  injurie,  shalbe  duly  considered  and  ordered  by  the  Commissioners 
for  thother  Jurisdiccons,  that  both  peace  and  this  present  Confeder- 
acon  may  be  entirely  preserued  without  violation. 

XII.  Lastly,  this  perpetuall  Confederacon  and  the  seueral  Articles 
and  Agreements  thereof  being  read  and  seriously  considered,  both  by 
the  Generall  Court  for  the  Massachusetts,  and  by  the  Commissioners 
for  Plymouth,  Connectacutt  and  New-Haven,  were  fully  allowed  and 
confirmed  by  three  of  the  forenamed  Confederates,  namely,  the 
Massachusetts,  Connectacutt  and  New-Haven,  Onely  the  Commis- 
sioners for  Plymouth,  having  no  Commission  to  conclude,  desired 
respite  till  they  might  advise  with  their  Generall  Court,  wherevpon 
it  was  agreed  and  concluded  by  the  said  court  of  the  Massachusetts, 
and  the  Commissioners  for  the  other  two  Confederates,  That  if  Ply- 
mouth Consent,  then  the  whole  treaty  as  it  stands  in  these  present 
articles  is  and  shall  continue  firme  and  stable  without  alteracon: 
But  if  Plymouth  come  not  in,  yet  the  other  three  Confederates  doe  by 
these  presents  confirme  the  whole  Confederacon  and  all  the  Articles 
thereof,  onely,  in  September  next,  when  the  second  meeting  of  the 
Commissioners  is  to  be  at  Bostone,  new  consideracon  may  be  taken  of 
the  sixt  Article,  which  concernes  number  of  Commissioners  for 
meeting  and  concFuding  the  affaires  of  this  Confederacon  to  the  satis- 
faccon  of  the  court  of  the  Massachusetts,  and  the  Commissioners  for 
thother  two  Confederates,  but  the  rest  to  stand  vnquestioned. 

In  testymony  whereof,  the  Generall  Court  of  the  Massachusetts 
by  their   Secretary,   and   for  the   Commissioners   Connectacutt  and 


432  THE  AMERICAN  GOVERN  MEN  T. 

New-Haven  haue  subscribed  these  presente  articles,  this  sixth  of  the 
third  month,  commonly  called  May,  Anno  Domini  1643. 

A-t  a  Meeting  of  the  Commissioners  for  the  Confederacon,  held  at 
Boston,  the  Seaventh  of  September.  It  appeareing  that  the  Generall 
Court  of  New  Plymouth,  and  the  severall  Towneships  thereof  have 
read,  considered  and  approoued  these  articles  of  Confederacon,  as 
appeareth  by  Commission  from  their  Generall  Court  beareing  Date 
the  xxixth  of  August,  1643,  to  Mr.  Edward  Winslowe  and  Mr.  Will 
Collyer,  to  ratifye  and  confirm  the  same  on  their  behalf,  wee  there- 
fore, the  Commissioners  for  the  Mattachusetts,  Conecktacutt  and 
New  Haven,  doe  also  for  our  seuerall  Gouernments,  subscribe  vnto 
them.  John  Winthrop,  Governor  of  Massachusetts. 

Tho.  Dudley.  Theoph.  Eaton. 

Geo.  Fenwick.  Edwa.  Hopkins. 

Thomas  Gregson. 


PENN'S    PLAN    OF   UNION. 


III.    PENN'S   PLAN  OF  UNION.— 1697. 


433 


Penn's  plan  was  presented  to  the  Board  of  Trade  in  1697, 
in  opposition  to  the  board's  plan  for  consolidating  the  col- 
onies. It  is  the  first  of  the  native  or  American  plans  of 
union.  See  Bancroft,  Vol.  IL,  p.  74;  Hildreth,  Vol.  II.,  p. 
198;  Frothingham,  p.  no;  and  The  American  Government, 
Chap.  IV. 

A  Briefe  and  Plaine  Scheme  how  the  English  Colonies  in  the  North 
parts  of  America,  viz. :  Boston,  Connecticut,  Rhode  Island,  New 
York,  New  Jersey,  Pennsylvania,  Maryland,  Virginia,  and  Carolina 
may  be  made  more  usefule  to  the  Crowne,  and  one  another's  peace 
and  safety  with  an  universal  concurrence. 

1st.  That  the  severall  Colonies  before  mentioned  do  meet  once  a 
year,  and  oftener  if  need  be  during  the  war,  and  at  least  once  in  two 
years  in  times  of  peace,  by  their  stated  and  appointed  Deputies,  to 
debate  and  resolve  of  such  measures  as  are  most  advisable  for  their 
better  understanding,  and  the  public  tranquility  and  safety. 

2d.  That  in  order  to  it  two  persons  well  qualified  for  sense,  sobri- 
ety, and  substance  be  appointed  by  each  Province,  as  their  Repre- 
sentatives or  Deputies,  which  in  the  whole  make  the  Congress  to 
consist  of  twenty  persons. 

3d.  That  the  King's  Commissioner  for  that  purpose  specially 
appointed  shall  have  the  chaire  and  preside  in  the  said  Congresse. 

4th.  That  they  shall  meet  as  near  as  conveniently  may  be  to  the 
most  centrale  Colony  for  use  of  the  Deputies. 

5th.  Since  that  may  in  all  probability  be  New  York,  both  be- 
cause it  is  near  the  Center  of  the  Colonies  and  for  that  it  is  a  Frontier 
and  in  the  King's  nomination,  the  Gov.  of  that  Colony  may  there- 
fore also  be  the  King's  High  Commissioner  during  the  session  after 
the  manner  of  Scotland. 

6th.  That  their  business  shall  be  to  hear  and  adjust  all  matters  of 
Complaint  or  difference  between  Province  and  Province.  As,  ist, 
where  persons  quit  their  own  Province  and  goe  to  another,  that  they 
may  avoid  their  just  debts,  tho  they  be  able  to  pay  them;  2nd, 
where  offenders  fly  Justice,  or  Justice  cannot  well  be  had  upon  such 
offenders  in  the  Provinces  that  entertaine  them ;  3dly,  to  prevent  or 
cure  injuries  in  point  of  Commerce;  4th,  to  consider  of  ways  and 
means  to  support  the  union  and  safety  of  these  Provinces  against  the 
publick  enemies.  In  which  Congresse  the  Quotas  of  men  and  charges 
will  be  much  easier,  and  more  equally  sett,  then  it  is  possible  for  any 
establishment  made  here  to  do ;  for  the  Provinces  knowing  their  own 

AM.     GOV. 28 


434  THE  AMERICAN  GOVERNMENT. 

condition  and  one  another's,  can  debate  that  matter  with  more  free- 
dome  and  satisfaction  and  better  adjust  and  balance  their  affairs  in 
all  respects  for  their  common  safety. 

7ly.  That  in  times  of  war  the  King's  High  Commissioner  shall  be 
Generall  or  Chief  Commander  of  the  severall  Quotas  upon  service 
against  a  common  enemy  as  he  shall  be  advised,  for  the  good  and 
benefit  of  the  whole. 


FRANKLIN'S  PLAN  OF  UNION.  435 


IV.    FRANKLIN'S  PLAN  OF  UNION.— 1754. 

PLAN  OF  UNION  OF  THE  BRITISH    AMERICAN   COLONIES,  ADOPTED  BY  THE 
CONVENTION   AT  ALBANY  IN    I7S4. 

As  sent  to  the  Board  of  Trade  and  to  the  colonies,  and  as 
commonly  pubhshed,  the  several  articles  of  this  plan  are  ac- 
companied by  certain  "  reasons  and  motives,"  explanatory  of 
their  meaning  and  application,  written  by  Franklin.  They 
occupy  much  more  room  than  the  articles  themselves,  and 
are  here  omitted  from  considerations  of  space.  They  can 
be  found  in  Preston,  Documents  Illustrative  of  American 
History,  p.  170;  Sparks,  Franklin's  Writings,  Vol.  IV.,  p. 
200;  Bigelow,  Works  of  Franklin,  Vol.  II.,  p.  355,  and  in 
The  Old  South  Leaflets,  No.  p.  See  Bancroft,  Vol.  IV.,  p. 
387;  Hildreth,  Vol.  II.,  p.  443;  Frothingham,  p.  136;  The 
American  Government,  Chap.  IV. ;  also  Documents  relating 
to  the  Colonial  History  of  New  York,  Vol.  VI.,  and  Collect 
tions  of  the  Massachusetts  Historical  Society,  1836. 

It  is  proposed  that  humble  application  be  made  for  an  act  of  Par- 
liament of  Great  Britain,  by  virtue  of  which  one  general  government 
may  be  formed  in  America,  including  all  the  said  Colonies,  within 
and  under  which  government  each  Colony  may  retain  its  present 
constitution,  except  in  the  particulars  wherein  a  change  may  be 
directed  by  the  said  act,  as  hereafter  follows. 

PRESIDENT-GENERAL  AND  GRAND  COUNCIL. 

That  the  said  general  government  be  administered  by  a  President- 
General,  to  be  appointed  and  supported  by  the  Crown;  and  a  Grand 
Council,  to  be  chosen  by  the  representatives  of  the  people  of  the 
several  Colonies  met  in  their  respective  assemblies. 

ELECTION  OF  MEMBERS. 

That  within  months  after  the  passing  such  act,  the  House  of 

Representatives  that  happens  to  be  sitting  within  that  time,  or  that 
shall  be  especially  for  that  purpose  convened,  may  and  shall  choose 


436  THE  AMERICAN  GOVERNMENT. 

members  for  the  Grand  Council,  in  the  following  proportion,  that  is 

to  say: — 

Massachusetts   Bay 7'     New   Hampshire t 

Connecticut    5        Rhode   Island 2 

New   York 4       New  Jersey 3 

Pennsylvania    6       Maryland    4 

Virginia    7       North  Carolina 4 

South    Carolina 4  — 

—  IS 

33  — 

Total   48 

PLACE  OF  FIRST   MEETING. 

who  shall  meet  for  the  first  time  at  the  City  of  Philadelphia,  in 

Pennsylvania,  being  called  by  the  President-General  as  soon  as  con- 
veniently may  be  after  his  appointment. 

NEW  ELECTION. 

That  there  shall  be  a  new  election  of  the  members  of  the  Grand 
Council  every  three  years ;  and,  on  the  death  or  resignation  of  any 
member,  his  place  should  be  supplied  by  a  new  choice  at  the  next 
sitting  of  the  Assembly  of  the  Colony  he  represented. 

PROPORTION  OF  MEMBERS  AFTER  THE  FIRST  THREE  YEARS. 

That  after  the  first  three  years,  when  the  proportion  of  money 
arising  out  of  each  Colony  to  the  general  treasury  can  be  known,  the 
number  of  members  to  be  chosen  for  each  Colony  shall  from  time  to 
time,  in  all  ensuing  elections,  be  regulated  by  that  proportion,  yet  so 
ks  that  the  number  to  be  chosen  by  any  one  Province  be  not  more 
than  seven,  nor  less  than  two. 

MEETINGS   OF  THE  GRAND  COUNCIL  AND  CALL. 

That  the  Grand  Council  shall  meet  once  in  every  year,  and  oftener, 
if  occasion  require,  at  such  time  and  place  as  they  shall  adjourn  to  at 
the  last  preceding  meeting,  or  as  they  shall  be  called  to  meet  at  by 
the  President-General  on  any  emergency,  he  having  first  obtained  in 
writing  the  consent  of  seven  of  the  members  to  such  call,  and  sent 
due  and  timely  notice  to  the  whole. 

CONTINUANCE. 

That  the  Grand  Council  have  power  to  choose  their  Speaker;  and 
shall  neither  be  dissolved,  prorogued,  nor  continued  sitting  longer 


FRANKLIN'S  PLAN  OF  UNION.  437 

than  six  weeks  at  one  time,  without  their  own  consent  or  the  special 
command  of  the  Crown. 


MEMBERS    ALLOWANCE. 

That  the  members  of  the  Grand  Council  shall  be  allowed  for  their 
service  ten  shillings  sterling  per  diem,  during  their  session  and  jour- 
ney to  and  from  the  place  of  meeting,  twenty  miles  to  be  reckoned  a  * 
day's  journey. 

ASSENT   OF    PJJESIDENT-GENERAL    AND    HIS    DUTV. 

That  the  assent  of  the  President-General  be  requisite  to  all  acts  of 
the  Grand  Council,  and  that  it  be  his  office  and  duty  to  cause  them  to 
be  carried  into  execution. 

POWER   OF   THE   PRESIDENT-GENERAL   AND   GRAND   COUNCIL;    TREATIES   OF 
PEACE  AND   WAR. 

That  the  President-General,  with  the  advice  of  the  Grand  Council, 
hold  or  direct  all  Indian  treaties,  in  which  the  general  interest  of  the 
Colonies  may  be  concerned ;  and  make  peace  or  declare  war  with 
Indian  nations. 

INDIAN  TRADE. 

That  they  make  such  laws  as  they  judge  necessary  for  regulating 
all  Indian  trade. 

INDIAN   PURCHASES. 


That  they  make  all  purchases  from  Indians,  for  the  Crown,  of 
lands  not  now  within  the  bounds  of  particular  Colonies,  or  that  shall 
not  be  within  their  bounds  when  some  of  them  are  reduced  to  more 
convenient  dimensions. 

NEW   SETTLEMENTS. 

That  they  make  new  settlements  on  such  purchases,  by  granting 
lands  in  the  King's  name,  reserving  a  quit-rent  to  the  Crown  for  the 
use  of  the  general  treasury. 

LAWS  TO  GOVERN   THEM. 

That  they  make  laws  for  regulating  and  governing  such  new  settlCr 


438  THE  AMERICAN  GOVERNMENT. 

ments  till  the  Crown  shall  think  fit  to  form  them  into  particular 
governments. 

KAISE  SOLDIERS  AND  EQUIP  VESSELS,  ETC. 

That  they  raise  and  pay  soldiers  and  build  forts  for  the  defense  of 
any  of  the  Colonies,  and  equip  vessels  of  force  to  guard  the  coasts 
and  protect  the  trade  on  the  ocean,  lakes,  or  great  rivers;  but  they 
shall  not  impress  'men  in  any  Colony  without  the  consent  of  the 
legislature. 

POWER  TO   MAKE  LAWS,   LAY  DUTIES,  ETC. 

That  for  these  purposes  they  have  power  to  make  laws,  and  lay 
and  levy  such  general  duties,  imposts,  or  taxes,  as  to  them  shall 
appear  most  equal  and  just  (considering  the  ability  and  other  circum- 
stances of  the  inhabitants  in  the  several  Colonies),  and  such  as  may 
be  collected  with  the  least  inconvenience  to  the  people;  rather  dis- 
couraging luxury,  than  loading  industry  with  unnecessary  burdens. 

GENERAL  TREASURER  AND  PARTICULAR  TREASURER. 

That  they  may  appoint  a  General  Treasurer  and  Particular  Treas- 
urer in  each  government  when  necessary ;  and  from  time  to  time,  may 
order  the  sums  in  the  treasuries  of  each  government  into  the  general 
treasury  or  draw  on  them  for  special  payments,  as  they  find  most 
convenient. 

MONEY,   HOW  TO  ISSUE. 

Yet  no  money  to  issue  but  by  joint  orders  of  the  President-General 
and  Grand  Council,  except  where  sums  have  been  appointed  to  par- 
ticular purposes,  and  the  President-General  is  previously  empowered 
by  an  act  to  draw  such  sums. 

ACCOUNTS. 

That  the  general  accounts  shall  be  yearly  settled  and  reported  to 
the  several  Assemblies. 

QUORUM.  ' 

That  a  quorum  of  the  Grand  Council,  empowered  to  act  with  the 
President-General,  do  consist  of  twenty-five  members ;  among  whom 
there  shall  be  one  or  more  from  a  majority  of  the  Colonies. 


FRANKLIN'S  PLAN  OF  UNION.  439 

LAWS  TO  BE  TRANSMITTED. 

That  the  laws  made  by  them  for  the  purposes  aforesaid  shall  not 
be  repugnant,  but,  as  near  as  may  be,  agreeable  to  the  laws  of  Eng- 
land, and  shall  be  transmitted  to  the  King  in  Council  for  approba- 
tion, as  soon  as  may  be  after  their  passing;  and  if  not  disapproved 
within  three  years  after  presentation,  to  remain  in  force. 

DEATH    OF    THE    PRESIDENT-GENERAL. 

That,  in  case  of  the  death  of  the  President-General,  the  Speaker 
of  the  Grand  Council  for  the  time  being  shall  succeed,  and  be  vested 
with  the  same  powers  and  authorities,  to  continue  till  the  King's 
pleasure  be  known. 

OFFICERS,   HOW  APPOINTED. 

That  all  military  commission  officers,  whether  for  land  or  sea 
service,  to  act  under  this  general  constitution,  shall  be  nominated  by 
the  President-General;  but  the  approbation  of  the  Grand  Council  is 
to  be  obtained,  before  they  receive  their  commissions.  And  all  civil 
officers  are  to  be  nominated  by  the  Grand  Council,  and  to  receive  the 
President-General's  approbation  before  they  officiate. 

VACANCIES,    HOW   SUPPLIED. 

But  in  case  of  vacancy  by  death  or  removal  of  any  officer,  civil  or 
military,  under  this  constitution,  the  Governor  of  the  Province  in 
which  such  vacancy  happens  may  appoint,  till  the  pleasure  of  the 
President-General  and  Grand  Council  can  be  known. 

EACH  COLONY  MAY  DEFEND  ITSELF  IN  EMERGENCY,  ETC. 

That  the  particular  military  as  well  as  civil  establishments  in  each' 
Colony  remain  in  their  present  state,  the  general  constitution  not- 
withstanding; and  that  on  sudden  emergencies  any  Colony  may 
defend  itself,  and  lay  the  accounts  of  expense  thence  arising  before 
the  President-General  and  General  Council,  who  may  allow  and 
order  payment  of  the  same,  as  far  as  they  judge  such  accounts  just 
and  reasonable. 


440 


THE  AMERICAN  GOVERNMENT. 


V.    DECLARATION  OF  RIGHTS.— 1765. 


RESOLVES  OF  THE  CONVENTION  OF  THE  ENGLISH  COLONIES  AT  NEW  YORK, 
OCTOBER   19,    1765. 

The  Congress  of  1765,  sometimes  called  "  the  Stamp  Act 
Congress,"  and  "  the  Day  Star  of  the  American  Union,"  was 
composed  of  28  delegates,  representing  9  colonies,  viz. : 
Massachusetts,  Connecticut,  Rhode  Island,  New  York,  New 
Jersey,  Pennsylvania,  Delaware,  Maryland,  and  South  Caro- 
lina. After  sitting  from  October  7  to  25,  the  delegates 
authorized  to  do  so,  representing  6  colonies,  signed  this 
Declaration  of  Rights.  See  Bancroft,  Vol.  III.,  p.  154; 
Hildreth,  Vol.  II.,  p.  530;  Frothingham,  p.  186;  Pitkin, 
Hist.  U.  S.,  Vol.  I.,  p.  178;  Story,  Commentaries  on  the  Con- 
stitution, Vol.  I.,  p.  130,  and  The  American  Government, 
Chap.  IV. 

The  Congress,  ui^n  mature  deliberation,  agreed  to  the  following 
declarations  of  the  rights  and  grievances  of  the  colonists  in  America : 

The  members  of  this  congress,  sincerely  devoted,  with  the  warm- 
est sentiments  of  affection  and  duty,  to  His  Majesty's  person  and 
government,  inviolably  attached  to  the  present  happy  establishment 
of  the  Protestant  succession,  and  with  minds  deeply  impressed  by  a 
sense  of  the  present  and  impending  misfortunes  of  the  British  colo- 
nies on  this  continent;  having  considered  as  maturely  as  time  will 
permit,  the  circumstances  of  the  said  colonies,  esteem  it  our  indis- 
pensable duty  to  make  the  following  declarations  of  our  humble 
opinion  respecting  the  most  essential  rights  and  liberties  of  the  colo- 
nists and  of  the  grievances  under  which  they  labor  by  reason  of  the 
several  late  acts  of  Parliament. 

1.  That  His  Majesty's  subjects  in  these  colonies,  owe  the  same 
allegiance  to  the  crown  of  Great  Britain,  that  is  owing  from  his  sub- 
jects born  within  the  realm;  and  all  due  subordination  to  that  august 
body,  the  Parliament  of  Great  Britain. 

2.  That  His  Majesty's  liege  subjects,  in  these  colonies,  are  entitled 
to  all  the  inherent  rights  and  liberties  of  his  natural  born  subjects 
within  the  kingdom  of  Great  Britain. 

3.  That  it  is  inseparably  essential  to  the  freedom  of  a  people,  and 
the  undoubted  right  of  Englishmen,  that  no  taxes  be  imposed  on 
them  but  with  their  own  consent,  given  personally,  or  by  their  repre- 
sentatives. 

4.  That  the  people  of  these  colonies  are  not,  and  from  their  local 


DECLARATION  OF  RIGHTS.  441 

circumstances  cannot  be,  represented  in  the  House  of  Commons,  in 
Great  Britain. 

5.  That  the  only  representatives  of  the  people  of  these  colonies, 
are  persons  chosen  therein  by  themselves;  and  that  no  taxes  ever 
have  been,  or  can  be  constitutionally  imposed  on  them,  but  by 
their  respective  legislatures. 

6.  That  all  supplies  to  the  crown,  being  the  free  gifts  of  the  people, 
it  is  unreasonable  and  inconsistent  with  the  principles  and  spirit  of 
the  British  constitution,  for  the  people  of  Great  Britain  to  grant  to 
His  Majesty,  the  property  of  the  colonists. 

7.  That  trial  by  jury  is  the  inherent  and  invaluable  right  of  every 
British  subject  in  these  colonies. 

8.  That  the  late  act  of  Parliament,  entitled  "An  act  for  granting 
and  applying  certain  stamp  duties,  and  other  duties  in  the  British 
colonies  and  plantations,  in  America,  etc.,"  by  imposing  taxes  on  the 
inhabitants  of  these  colonies,  and  the  said  act,  and  several  other  acts, 
by  extending  the  jurisdiction  of  the  courts  of  admiralty  beyond  its 
ancient  limits,  have  a  manifest  tendency  to  subvert  the  rights  and 
liberties  of  the  colonists. 

9.  That  the  duties  imposed  by  several  late  acts  of  Parliament, 
from  the  peculiar  circumstances  of  these  colonies,  will  be  extremely 
burthensome  and  grievous,  and  from  the  scarcity  of  specie,  the  pay- 
ment of  them  absolutely  impracticable. 

ID.  That  as  the  profits  of  the  trade  of  these  colonies  ultimately 
center  in  Great  Britain,  to  pay  for  the  manufactures  which  they  are 
obliged  to  take  from  thence,  they  eventually  contribute  very  largely 
to  all  supplies  granted  there  to  the  crown. 

11.  That  the  restrictions  imposed  by  several  late  acts  of  Parlia- 
ment on  the  trade  of  these  colonies,  will  render  them  unable  to  pur- 
chase the  manufactures  of  Great  Britain. 

12.  That  the  increase,  prosperity,  and  happiness  of  these  colonies 
depend  on  the  full  and  free  enjoyments  of  their  rights  and  liberties, 
and  an  intercourse  with  Great  Britain,  mutually  affectionate  and 
advantageous. 

13.  That  it  is  the  right  of  the  British  subjects  in  these  colonies  to 
petition  the  King,  or  either  house  of  Parliament. 

Lastly.  That  it  is  the  indispensable  duty  of  these  colonies,  to  the 
best  of  sovereigns,  to  the  mother  country,  and  to  themselves,  to 
endeavour  by  a  loyal  and  dutiful  address  to  His  Majesty,  and  hum- 
ble applications  to. both  houses  of  Parliament,  to  procure  the  repeal 
of  the  act  for  granting  and  applying  certain  stamp  duties,  of  all 
clauses  of  any  other  acts  of  Parliament,  whereby  the  jurisdiction  of 
the  admiralty  is  extended,  as  aforesaid,  and  of  the  other  late  acts  for 
the  restriction  of  American  commerce. 


442  THE  AMERICAN  GOVERNMENT. 

VI.     DECLARATION  OF  RIGHTS.— 1774. 

The  Congress  of  1774  sat  at  Philadelphia  from  September 
5  to  October  14.  It  contained  representatives  from  all  the 
colonies  but  Georgia.  See  Bancroft,  Vol.  IV.,  p.  65 ;  Hil- 
dreth.  Vol.  III.,  p.  43 ;  Frothingham,  p.  371 ;  Pitkin,  Vol.  I., 
p.  283 ;  Story,  Vol.  I.,  p.  133 ;  Curtis,  History  of  the  Consti- 
tution, Vol.  I.,  p.  22 ;  The  American  Government,  Chap.  IV. 

Whereas,  since  the  close  of  the  last  war,  the  British  Parliament 
claiming  a  power  of  right,  to  bind  the  people  of  America  by  statutes 
in  all  cases  whatsoever,  hath,  in  some  acts,  expressly  imposed  taxes 
on  them,  and  in  others,  under  various  pretences,  but  in  fact  for  the 
purpose  of  raising  a  revenue,  hath  imposed  rates  and  duties  payable 
in  these  colonies,  established  a  board  of  commissioners,  with  uncon- 
stitutional powers,  and  extended  the  jurisdiction  of  courts  of  admir- 
alty, not  only  for  collecting  the  said  duties,  but  for  the  trial  of  causes 
merely  arising  within  the  body  of  a  county. 

And  whereas,  in  consequence  of  other  statutes,  judges,  who  before 
held  only  estates  at  will  in  their  offices,  have  been  made  dependent  on 
the  crown  alone  for  their  salaries,  and  standing  armies  kept  in  time 
of  peace :  And  whereas,  it  has  lately  been  resolved  in  parliament, 
that  by  force  of  a  statute,  made  in  the  thirty-fifth  year  of  the  reign 
of  King  Henry  the  Eighth,  colonists  may  be  transported  to  England, 
and  tried  there  upon  accusations  for  treasons,  and  misprisions,  or 
concealments  of  treasons  committed  in  the  colonies,  and  by  a  late 
statute,  such  trials  have  been  directed  in  cases  therein  mentioned. 

And  whereas,  in  the  last  session  of  parliament,  three  statutes  were 
made;  one,  entitled  "An  act  to  discontinue,  in  such  manner,  and  for 
such  time  as  are  therein  mentioned,  the  landing  and  discharging, 
lading  or  shipping  of  goods,  wares  and  merchandise,  at  the  town,  and 
within  the  harbour  of  Boston,  in  the  province  of  Massachusetts  Bay, 
in  North  America ;  "  another,  entitled  "  An  act  for  the  better  regulat- 
ing the  government  of  the  province  of  Massachusetts  Bay  in  New 
England ;  "  and  another,  entitled  "  An  act  for  the  impartial  adminis- 
tration of  justice,  in  the  cases  of  persons  questioned  for  any  act  done 
by  them  in  the  execution  of  the  law,  or  for  the  suppression  of  riots 
and  tumults,  in  the  province  of  Massachusetts  Bay  in  Noiv  Eng- 
land ; "  and  another  statute  was  then  made,  "  for  making  more 
effectual  provision  for  the  government  of  the  province  of  Quebec, 
etc."  All  which  statutes  are  impolitic,  unjust,  and  cruel,  as  well  as 
unconstitutional,  and  most  dangerous  and  destructive  of  American 
rights. 


DECLARATION  OF  RIGHTS.  443 

And  whereas,  assemblies  have  been  frequently  dissolved,  contrary 
to  the  rights  of  the  people,  when  they  attempted  to  deliberate  on 
grievances,  and  their  dutiful,  humble,  loyal,  and  reasonable  petitions 
to  the  crown  for  redress,  have  been  repeatedly  treated  with  contempt 
by  His  Majesty's  ministers  of  state: 

The  good  people  of  the  several  colonies  of  New  Hampshire,  Massa- 
chusetts Bay,  Rhode  Island  and  Providence  Plantations,  Connecticut, 
New  York,  New  Jersey,  Pennsylvania,  New  Castle,  Kent  and  Sussex, 
on  Delaware,  Maryland,  Virginia,  North  Carolina,  and  South  Caro- 
lina justly  alarmed  at  these  arbitrary  proceedings  of  parliament  and 
administration,  have  severally  elected,  constituted  and  appointed 
deputies  to  meet,  and  sit  in  General  Congress,  in  the  city  of  Philadel- 
phia, in  order  to  obtain  such  establishment,  as  that  their  religion, 
laws,  and  liberties,  may  not  be  subverted.  Whereupon  the  deputies 
so  appointed  being  now  assembled,  in  a  full  and  free  representation 
of  these  colonies,  taking  into  their  most  serious  consideration,  the 
best  means  of  attaining  the  ends  aforesaid,  do,  in  the  first  place,  as 
Englishmen,  their  ancestors  in  like  cases  have  usually  done,  for 
effecting  and  vindicating  their  rights  and  liberties,  DECLARE, 

That  the  inhabitants  of  the  English  colonies  in  North  America,  by 
the  immutable  laws  of  nature,  the  principles  of  the  English  constitu- 
tion, and  the  several  charters  or  compacts,  have  the  following 
RIGHTS : 

Resolved,  N.  CD.  i.  That  they  are  entitled  to  life,  liberty,  and 
property,  and  that  they  have  never  ceded  to  any  sovereign  power 
whatever,  a  right  to  dispose  of  either  without  their  consent. 

Resolved,  N.  C.  D.  2.  That  our  ancestors,  who  first  settled  these 
colonies,  were  at  the  time  of  their  emigration  from  the  mother  coun- 
try, entitled  to  all  the  rights,  liberties,  and  immunities  of  free  and 
natural-born  subjects,  within  the  realm  of  England. 

Resolved,  N.  C.  D.  3.  That  by  such  emigration,  they  by  no 
means  forfeited,  surrendered,  or  lost  any  of  those  rights,  but  that 
they  were,  and  their  descendants  now  are,  entitled  to  the  exercise 
and  enjoyment  of  all  such  of  them,  as  their  local  and  other  circum- 
stances enable  them  to  exercise  and  enjoy. 

Resolved,  N.  D.  C.  4.  That  the  foundation  of  English  liberty,  and 
of  all  free  government,  is  a  right  in  the  people  to  participate  in  their 
legislative  council :  and  as  the  English  colonists  are  not  represented, 
and  from  their  local  and  other  circumstances,  cannot  properly  in  the 
British  parliament,  they  are  entitled  to  a  free  and  exclusive  power  of 
legislation  in  their  several  provincial  legislatures,  where  their  right  of 
representation  can  alone  be  preserved,  in  all  cases  of  taxation  and  in- 
ternal polity,  subject  only  to  the  negative  of  their  sovereign,  in  such 
manner  as  has  been  heretofore  used  and  accustomed.    But,  from  the 


444  THE  AMERICAN  GOVERNMENT. 

necessity  of  the  case,  and  a  regard  to  the  mutual  interest  of  both 
countries,  we  cheerfully  consent  to  the  operation  of  such  acts  of  the 
British  parliament  as  are  bona  fide,  restrained  to  the  regulation  of 
our  external  commerce,  for  the  purpose  of  securing  the  commercial 
advantages  of  the  whole  empire  to  the  mother  country,  and  the  com- 
mercial benefits  of  its  respective  members ;  excluding  every  idea  of 
taxation  internal  or  external  for  raising  a  revenue  on  the  subjects  in 
America,  without  their  consent. 

Resolved,  N.  C.  D.  5.  That  the  respective  colonies  are  entitled  to 
the  common  law  of  England,  and  more  especially  to  the  great  and 
inestimable  privilege  of  being  tried  by  their  peers  of  the  vicinage, 
according  to  the  course  of  that  law. 

Resolved,  6.  That  they  are  entitled  to  the  benefit  of  such  of 
the  English  statutes,  as  existed  at  the  time  of  their  colonization ;  and 
which  they  have,  by  experience,  respectively  found  to  be  applicable 
to  their  several  local  and  other  circumstances. 

Resolved,  N.  C.  D.  7.  That  these,  his  Majesty's  colonies,  are  like- 
wise entitled  to  all  the  immunities  and  privileges  granted  and  con- 
firmed to  them  by  royal  charters,  as  secured  by  their  several  codes  of 
provincial  laws. 

Resolved,  N.  C.  D.  8.  That  they  have  a  right  peaceable  to  as- 
semble, consider  of  their  grievances,  and  petition  the  king;  and 
that  all  prosecutions,  prohibiting  proclamations,  and  commitments 
for  the  same  are  illegal. 

Resolved,  N.  C.  D.  9.  That  the  keeping  a  standing  army  in  these 
colonies,  in  times  of  peace,  without  the  consent  of  the  legislature  of 
that  colony,  in  which  such  army  is  kept,  is  against  law. 

Resolved,  N.  C.  D.  10.  It  is  indispensably  necessary  to  good 
government,  and  rendered  essential  by  the  English  constitution, 
that  the  constituent  branches  of  the  legislature  be  independent  of 
each  other;  that,  therefore,  the  exercise  of  legislative  power  in 
several  colonies,  by  a  counsel  appointed,  during  pleasure,  by  the 
crown,  is  unconstitutional,  dangerous  and  destructive  to  the  freedom 
of  American  legislation. 

All  and  each  of  which  the  aforesaid  deputies,  in  behalf  of  them- 
selves, and  their  constituents,  do  claim,  demand,  and  insist  on,  as 
their  indubitable  rights  and  liberties:  which  cannot  be  legally  taken 
from  them,  altered  or  abridged  by  any  power  whatever,  without  their 
own  consent,  by  their  representatives  in  their  several  provincial  legis- 
latures. 

In  the  course  of  our  inquiry,  we  find  many  infringements  and  vio- 
lations of  th6  foregoing  rights,  which  from  an  ardent  desire,  that 
harmony  and  mutual  intercourse  of  affection  and  interest  may  be 
restored,  we  pass  over  for  the  present,  and  proceed  to  state  such  acts 


DECLARATION  OF  RIGHTS.  445 

and  measures  as  have  been  adopted  since  the  late  war,  which  demon- 
strate a  system  formed  to  enslave  America. 

Resolved,  N.  C.  D.  The  following  acts  of  parliament  are  infringe- 
ments and  violations  of ,  the  rights  of  the  colonists ;  and  that  the 
repeal  of  them  is  essentially  necessary,  in  order  to  restore  harmony 
between  Great  Britain  and  the  American  colonists,  viz. : 

The  several  acts  of  4  Geo.  III.  ch.  15  and  ch.  34.  —  5  Geo.  III.  ch. 
25.  — 6  Geo.  III.  ch.  52.  —  7  Geo.  III.  ch.  41,  and  ch.  46.  —  8  Geo. 
III.  ch.  22,  which  imposed  duties  for  the  purpose  of  raising  a  revenue 
in  America,  extend  the  power  of  the  admiralty  courts  beyond  their 
ancient  limits,  deprive  the  American  subject  of  trial  by  jury,  author- 
ize the  judges'  certificate  to  indemnify  the  prosecutor  from  damages, 
that  he  might  otherwise  be  liable  to,  requiring  oppressive  security 
from  a  claimant  of  ships  and  goods  seized,  before  he  shall  be  allowed 
to  defend  his  property,  and  are  subservient  of  American  rights. 

Also  12  Geo.  III.  ch.  24,  entitled  "  An  act  for  the  better  securing 
his  majesty's  dock-yards,  magazines,  ships,  ammunition,  and  stores," 
which  declares  a  new  offence  in  America,  and  deprives  the  American 
subject  of  a  constitutional  trial  by  jury  of  the  vicinage,  by  authoriz- 
ing the  trial  of  any  person,  charged  with  the  committing  any  offence 
described  in  the  said  act,  out  of  the  realm,  to  be  indicted  and  tried 
for  the  same  in  any  shire  or  county  within  the  Yealm. 

Also  the  three  acts  passed  in  the  last  session  of  parliament,  for 
stopping  the  port  and  blocking  the  harbour  of  Boston,  for  altering 
the  charter  and  government  of  Massachusetts  Bay,  and  that  which  is 
entitled  "  An  act  for  the  better  administration  of  Justice,  etc." 

Also  the  act  passed  at  the  same  session  for  establishing  the  Roman 
Catholic  religion,  in  the  province  of  Quebec,  abolishing  the  equitable 
system  of  English  laws,  and  erecting  a  tyranny  there,  to  the  great 
danger  (from  so  total  a  dissimilarity  of  religion,  law  and  government) 
of  the  neighboring  British  Colonies,  by  the  assistance  of  whose  blood 
and  treasure  the  said  country  was  conquered  from  France. 

Also,  the  act  passed  in  the  same  session,  for  the  better  providing 
suitable  quarters  for  officers  and  soldiers  in  his  majesty's  service,  in 
North  America. 

Also,  that  the  keeping  a  standing  army  in  several  of  these  colonies, 
in  time  of  peace,  without  the  consent  of  the  legislature  of  that  colony, 
in  which  such  army  is  kept,  is  against  law. 

To  these  grievous  acts  and  measures,  Americans  cannot  submit, 
but  in  hopes  their  fellow-subjects  in  Great  Britain  will,  on  a  revision 
of  them,  restore  us  to  that  state,  in  which  both  countries  found  happi- 
ness and  prosperity,  we  have  for  the  present,  only  resolved  to  pursue 
the  following  peaceable  measures:  i.  To  enter  into  a  non-importa- 
tion, non-consumption,  and  non-exportation   agreement   or  associa- 


446  THE  AMERICAN  GOVERNMENT. 

tion.  2.  To  prepare  an  address  lo  the  people  of  Great  Britain,  and  a 
memorial  to  the  inhabitants  of  British  America :  and  3.  To  prepare  a 
loyal  address  to  his  Majesty,  agreeable  to  resolutions  already  entered 
into. 


NON-IMPORTATION  AGREEMENT.  447 


VII.    THE  NON-IMPORTATION  AGREEMENT.— 1774. 

The  following  agreement  was  signed  by  50  delegates  to  the 
Congress  of  1774,  and  was  subsequently  ratified  by  the  colo- 
nial legislatures.  John  Adams  called  it  the  "  memorable 
league  of  the  Continent  in  1^74,  which  first  expressed  the 
sovereign  will  of  a  free  nation  in  America,"  and  Hildreth 
says,  "  it  may  be  considered  the  commencement  of  the 
American  Union."  It  immediately  follows  th6  Declaration 
of  Rights,  and  the  bibliography  is  the  same  as  for  the  last 
section. 

We,  his  Majesty's  most  loyal  subjects,  the  delegates  of  the  several 
Colonies  of  New  Hampshire,  Massachusetts  Bay,  Rhode  Island,  Con- 
necticut, New  York,  New  Jersey,  Pennsylvania,  the  three  lower  coun- 
ties of  New  Castle,  Kent  and  Sussex,  on  Delaware,  Maryland,  Vir- 
ginia, North  Carolina,  and  South  Carolina,  deputed  to  represent  them 
in  a  Continental  Congress,  held  in  the  City  of  Philadelphia,  on  the 
fifth  day  of  September,  1774,  avowing  our  allegiance  to  his  Majesty, 
our  affection  and  regard  for  our  fellow  subjects  in  Great  Britain 
and  elsewhere,  affected  with  the  deepest  anxiety,  and  most  alarming 
apprehensions  at  those  grievances  and  distresses,  with  which  his 
Majesty's  American  subjects  are  oppressed,  and  having  taken  under 
our  most  serious  deliberation  the  state  of  the  whole  Continent,  find, 
that  the  present  unhappy  situation  of  our  affairs,  is  occasioned  by  a 
ruinous  system  of  Colony  Administration  adopted  by  the  British 
Ministry  about  the  year  1763,  evidently  calculated  for  enslaving  these 
Colonies,  and,  with  them,  the  British  Empire. 

In  prosecution  of  which  system,  various  Acts  of  Parliament  have 
been  passed  for  raising  a  revenue  in  America,  for  depriving  the 
American  subjects,  in  many  instances,  of  the  constitutional  trial  by 
jury,  exposing  their  lives  to  danger,  by  directing  a  new  and  illegal 
trial  beyond  the  seas,  for  crimes  alleged  to  have  been  committed  in 
America :  and  in  prosecution  of  the  same  system,  several  late,  cruel, 
and  oppressive  acts  have  been  passed  respecting  the  town  of  Boston 
and  the  Massachusetts  Bay,  and  also  an  act  for  extending  the  Prov- 
ince of  Quebec,  so  as  to  border  on  the  western  frontiers  of  these  Col- 
onies, establishing  an  arbitrary  government  therein,  and  discouraging 
the  settlement  of  British  subjects  in  that  wide  extended  country; 
thus,  by  the  influence  of  civil  principles  and  ancient  prejudices,  to 
dispose  the  inhabitants  to  act  with  hostility  against  the  free  Protes- 


448  THE  AMERICAN  GOVERNMENT. 

tant  Colonies,  whenever  a  wicked  Ministry  shall  chuse  to  direct 
them. 

To  obtain  redress  of  these  grievances,  which  threaten  destruction 
to  the  lives,  liberty,  and  property  of  his  Majesty's  subjects  in  North 
America,  we  are  of  opinion  that  a  Non-Importation,  Non-Consump- 
tion, and  Non-Exportation  Agreement,  faithfully  adhered  to,  will 
prove  the  most  speedy,  effectual,  and  peaceable  measure;  apd,  there- 
fore, we  do,  for  ourselves,  and  the  inhabitants  of  the  several  Colonies, 
whom  we  represent,  firmly  agree  and  associate,  under  the  sacred  ties 
of  virtue,  honor  and  love  of  our  country,  as  follows : 

First.  That  from  and  after  the  first  day  of  December  next,  we 
will  not  import  into  British  America,  from  Great  Britain  or  Ireland, 
any  Goods,  Wares,  or  Merchandise  whatsoever,  or  from  any  other 
place,  any  such  Goods,  Wares,  or  Merchandise,  as  shall  have  been 
exported  from  Great  Britain  or  Ireland;  nor  will  we,  after  that  day, 
import  any  East  India  tea  from  any  part  of  the  world;  nor  any 
Molasses,  Syrups,  Paneles,  Coffee  or  Pimento,  from  the  British  Plan- 
tations or  from  Dominica ;  nor  wines  from  Madeira,  or  the  Western 
Islands ;  nor  foreign  Indigo. 

Second.  We  will  neither  import  nor  purchase  any  slave  imported, 
after  the  first  day  of  December  next ;  after  which  time  we  will  wholly 
discontinue  the  Slave  Trade,  and  will  neither  be  concerned  in  it  our- 
selves, nor  will  <we  hire  our  vessels,  nor  sell  our  commodities  or 
manufactures  to  those  who  are  concerned  in  it. 

Third.  As  a  Non-Consumption  Agreement,  strictly  adhered  to, 
will  be  an  effectual  security  for  the  observance  of  the  Non-Importa- 
tion, we,  as  above,  solemnly  agree  and  associate,  that  from  this  day 
we  will  not  purchase  or  use  any  tea  imported  on  account  of  the  East 
India  Company,  or  any  on  which  a  duty  hath  been  or  shall  be  paid ; 
and  from  and  after  the  first  day  of  March  next,  we  will  not  purchase 
or  use  any  East  India  tea  whatever;  nor  will  we,  nor  shall  any  per- 
son for  or  under  us,  purchase  or  use  any  of  those  goods,  wares,  or 
merchandises,  we  have  agreed  not  to  import,  which  we  shall  know, 
or  have  cause  to  suspect,  were  imported  after  the  first  day  of  Decem- 
ber, except  such  as  come  under  the  rules  and  regulations  of  the  tenth 
article  hereafter  mentioned. 

Fourth.  The  earnest  desire  we  have,  not  to  injure  our  fellow-sub- 
jects in  Great  Britain,  Ireland  or  the  West  Indies,  induces  us  to  sus- 
pend a  Non-Exportation,  until  the  tenth  day  of  September,  1775 ;  at 
which  time,  if  the  said  acts  and  parts  of  acts  of  the  British  Parliament 
hereinafter  mentioned,  are  not  repealed,  we  will  not  directly  or  indi- 
rectly, export  any  merchandise  or  commodity  whatsoever  to  Great 
Britain,  Ireland  or  the  West  Indies,  except  rice  to  Europe. 

Fifth.    Such  as  are  merchants  and  use  the  British  and  Irish  trade, 


NON-IMPORTATION  AGREEMENT.  449 

will  give  orders,  as  soon  as  possible  to  their  factors,  agents  and  corre- 
spondents, in  Great  Britain  and  Ireland,  not  to  ship  any  goods  to 
them,  on  any  pretence  whatsoever,  as  they  cannot  be  received  in 
America ;  and  if  any  merchant,  residing  in  Great  Britain  or  Ireland, 
shall  directly  or  indirectly  ship  any  goods,  wares,  or  merchandises, 
for  America,  in  order  to  break  the  said  Non-Importation  Agreement, 
or  in  any  manner  contravene  the  same,  on  such  unworthy  conduct 
being  well  attested,  it  ought  to  be  made  publick;  and,  on  the  same 
•being  so  done,  we  will  not  from  thenceforth  have  any  commercial 
connexion  with  any  such  merchant. 

Sixth.  That  such  as  are  owners  of  vessels  will  give  positive  orders 
to  their  captains,  or  masters,  not  to  receive  on  board  their  vessel  any 
goods  prohibited  by  the  said  Non-Importation  Agreement,  on  pain  of 
immediate  dismission  from  their  service. 

Seventh.  We  will  use  our  utmost  endeavors  to  improve  the  breed 
of  sheep,  and  to  increase  their  number  to  the  greatest  extent ;  and  to 
that  end,  we  will  kill  them  as  sparingly  as  may  be,  especially  those  of 
the  most  profitable  kind ;  nor  will  we  export  any  to  the  West  Indies 
or  elsewhere;  and  those  of  us  who  are  or  may  become  over-stocked 
with,  or  can  conveniently  spare  any  sheep,  will  dispose  of  them  to 
our  neighbors,  especially  to  the  poorer  sort,  upon  moderate  terms. 

Eighth.  That  we  will,  in  our  several  stations,  encourage  frugality, 
economy,  and  industry;  and  promote  agriculture,  arts,  and  the  manu- 
factures of  this  Country,  especially  that  of  wool ;  and  will  discoun- 
tenance and  discourage,  every  species  of  extravagance  and  dissipation, 
especially  all  horse-racing,  and  all  kinds  of  gaming,  cock-fighting, 
exhibitions  of  plays,  shews,  and  other  expensive  diversions  and  enter- 
tainments ;  and  on  the  death  of  any  relation  or  friend,  none  of  us,  or 
any  of  our  families  will  go  into  any  further  mourning  dress,  than  a 
black  crape  or  ribbon  on  the  arm  or  hat  for  gentlemen,  and  a  black 
ribbon  and  necklace  for  ladies,  and  we  will  discountenance  the  giv- 
ing of  gloves  and  scarfs  at  funerals. 

Ninth.  That  such  as  are  venders  of  goods  or  merchandises,  will 
not  take  advantage  of  the  scarcity  of  goods  that  may  be  occasioned  by 
this  association,  but  will  sell  the  same  at  the  rates  we  have  been 
respectively  accustomed  to  do,  for  twelve  months  last  past.  And  if 
any  vender  of  goods  or  merchandises  shall  sell  any  such  goods  on 
higher  terms,  or  shall  in  any  manner,  or  by  any  device  whatsoever 
violate  or  depart  from  this  Agreement,  no  person  ought,  nor  will  any 
of  us  deal  with  any  such  person,  or  his  or  her  factor  or  agent,  at  any 
time  thereafter  for  any  commodity  whatever. 

Tenth.  In  case  any  merchant,  trader,  or  other  person,  shall  im- 
port any  Goods  or  Merchandise,  after  the  first  day  of  December,  and 
before  the  first  day  of  February  next,  the  same  ought  forthwith,  at 


450  THE  AMERICAN  GOVERNMENT. 

the  election  of  the  owner,  to  be  either  reshipped  or  delivered  up  to 
the  Committee  of  the  County  or  Town  wherein  they  shall  be  imported, 
to  be  stored  at  the  wish  of  the  importer,  until  the  Non-Importation 
Agreement  shall  cease,  or  be  sold  under  the  direction  of  the  Com- 
mittee aforesaid;  and  in  the  last  mentioned  case,  the  owner  or  own- 
ers of  such  goods  shall  be  re-imbursed  out  of  the  sales  the  first  cost 
and  charges ;  the  profit,  if  any,  to  be  applied  towards  relieving  and 
employing  such  poor  inhabitants  of  the  Town  of  Boston  as  are  im- 
mediate sufferers  by  the  Boston  Port  Bill;  and  a  particular  account 
of  all  goods  so  returned,  stored,  or  sold,  to  be  inserted  in  the  publick 
papers,  and  if  any  goods  or  merchandises  shall  be  imported  after  the 
said  first  day  of  February,  the  same  ought  forthwith  to  be  sent  back 
again,  without  breaking  any  of  the  packages  thereof. 

Eleventh.  That  a  Committee  be  chosen  in  every  County,  City, 
and  Town,  by  those  who  are  qualified  to  vote  for  Representatives  in 
the  Legislature,  whose  business  it  shall  be  attentively  to  observe  the 
conduct  of  all  persons  touching  this  Association ;  and  when  it  shall  be 
made  to  appear  to  the  satisfaction  of  a  majority  of  any  such  Commit- 
tee, that  any  person  within  the  limits  of  their  appointment  has 
violated  this  Association,  that  such  a  majority  do  forthwith  cause  the 
truth  of  the  case  to  be  published  in  the  Gazette,  to  the  end  that  all 
such  foes  to  the  rights  of  British  America  may  be  publickly  known 
and  universally  contemned  as  the  enemies  of  American  liberty;  and 
thenceforth  we  respectively  will  break  off  all  dealings  with  him  or  her. 

Twelfth.  That  the  Committee  of  Correspondence  in  the  respec- 
tive Colonies,  do  frequently  inspect  the  entries  of  their  Custom 
Houses,  and  inform  each  other,  frorti  time  to  time,  of  the  true  state 
thereof,  and  of  every  other  material  circumstance  that  may  occur 
relative  to  this  association. 

Thirteenth.  That  all  manufactures  of  this  country  be  sold  at 
reasonable  prices,  so  that  no  undue  advantage  be  taken  of  a  future 
scarcity  of  goods. 

Fourteenth.  And  we  do  further  agree  and ,  resolve  that  we  will 
have  no  Trade,  Commerce,  Dealings,  or  Intercourse  whatsoever  with 
any  Colony  or  Province  in  North  America,  which  shall  not  accede 
to,  or  which  shall  hereafter  violate  this  Association,  but  will  hold 
them  as  unworthy  of  the  right  of  freemen,  and  as  inimical  to  the 
liberties  of  this  country. 

And  we  do  solemnly  bind  ourselves  and  our  constituents  under 
the  ties  aforesaid,  to  adhere  to  this  Association  until  such  parts  of 
the  several  Acts  of  Parliament  passed  since  the  close  of  the  last  war, 
as  impose  or  continue  duties  on  Tea,  Wine,  Molasses,  Syrups, 
Paneles,  Coffee,  Sugar.  Pimento.  Indigo,  Foreign  Paper,  Glass,  and 
Painters'  Colors,  imported  into  America,  and  extend  the  powers  of 


NON-iMPORTATION  AGREEMENT.  451 

the  Admiralty  Courts  beyond  their  ancient  limits,  deprive  the  Amer- 
ican subjects  of  Trial  by  Jury,  authorize  the  judge's  certificate  to 
indemnify  the  prosecutor  from  damages  that  he  might  otherwise  be 
liable  to  from  a  trial  by  his  peers,  require  oppressive  security  from  a 
claimant  of  ships  or  goods  seized,  before  he  shall  be  allowed  to  de- 
fend his  property,  are  repealed. — And  until  that  part  of  the  act  of  the 
I2th  George  III.,  ch.  24,  entitled,  "  An  Act  for  the  better  securing  his 
majesty's  Dock- Yards,  Magazines,  Ships,  Ammunition,  and  Stores," 
by  which  any  person  charged  with  committing  any  of  the  offences 
therein  described,  in  America,  may  be  tried  in  any  Shire  or  County 
within  the  realm,  is  repealed — and  until  the  four  Acts  passed  in  the 
last  session  of  Parliament,  viz. :  that  for  stopping  the  Port  and 
blocking  up  the  Harbor  of  Boston  —  that  for  altering  the  Charter  of 
government  of  the  Massachusetts  Bay — and  that  which  is  entitled 
"  An  Act  for  the  better  Administration  of  Justice,"  etc. — and  that 
for  extending  the  limits  of  Quebec,  etc.,  are  repealed.  And  we 
recommend  it  to  the  Provincial  Conventions,  and  to  the  Committees 
in  the  respective  Colonies  to  establish  such  farther  regulations  as 
they  may  think  proper  for  carrying  into  execution  this  Association. 

The  foregoing  Association  being  determined  upon  by  the  Congress, 
was  ordered  to  be  subscribed  by  the  several  members  thereof;  and 
thereupon,  we  have  hereunto  set  our  respective  names  accordingly. 

In  Congress,  Philadelphia,  October  20,  1774. 

PEYTON  RANDOLPH,  President. 


452 


THE  AMERICAN  GOVERNMENT. 


Vin.    THE  DECLARATION  OF  INDEPENDENCE.— 1776. 

On  May  5,  1776,  the  Continental  Congress  declared  that 
the  exercise  of  every  kind  of  authority  under  the  crown  of 
England  should  be  totally  suppressed.  On  June  7  Richard 
Henry  Lee,  of  Virginia,  offered  and  John  Adams,  of  Massa- 
chusetts, seconded  resolutions  declaring  that  the  united  colo- 
nies were,  and  of  right  ought  to  be,  free  and  independent 
states;  that  they  were  absolved  from  all  allegiance  to  the 
British  crown,  and  that  all  political  connection  between  them 
and  Great  Britain  was  totally  dissolved ;  that  it  was  expedi- 
ent forthwith  to  take  effectual  measures  for  forming  foreign 
alliances,  and  that  a  plan  of  confederation  should  be  pre- 
pared and  transmitted  to  the  colonies  for  their  consideration 
and  approbation.  These  resolutions  were  discussed  June  8 
and  10,  when  the  well-known  committee  of  five  was  appoint- 
ed to  draft  a  declaration  in  compliance  with  the  first  resolu- 
tion, and  the  further  discussion  of  the  subject  was  postponed 
to  July  I.  The  resolution  was  adopted  July  2,  and  on  the 
4th  of  the  same  month,  the  Declaration  that  the  committee 
had  reported  was  agreed  upon.  It  v/as  not  engrossed  and 
signed  by  the  members  until  August  2,  following.  See  Ban- 
croft, Vol.  IV.,  Chap.  28;  Hildreth,  Vol.  III.,  p.  127;  Froth- 
ingham,  p.  539;  Story,  Vol.  I.,  p.  137;  The  American  Gov- 
ernment, Chap.  IV. 

THE  DECLARATION  OF  INDEPENDENCE. 

In  Congress  July  4,  1776. 

The    Unanimous   Declaration    of    the    Thirteen    United    States    of 
America. 

When  in  the  course  of  human  events,  it  becomes  necessary  for 
one  people  to  dissolve  the  political  bands  which  have  connected  them 
with  another,  and  to  assume  among  the  Powers  of  the  earth,  the 
separate  and  equal  station  to  which  the  Laws  of  Nature  and  of  Na- 
ture's God  entitle  them,  a  decent  respect  to  the  opinions  ot  mankind 
requires  that  they  should  declare  the  causes  which  impel  them  to  the 
separation. 


DECLARATION  OF  INDEPENDENCE.  453 

We  hold  these  truths  to  be  self-evident,  that  all  men  are  created 
equal,  that  they  are  endowed  by  their  Creator  with  certain  unalien- 
able Rights,  that  among  these  are  Life,  Liberty  and  the  pursuit  of 
Happiness.  That  to  secure  these  rights,  Governments  are  instituted 
among  Men,  deriving  their  just  powers  from  the  consent  of  the  gov- 
erned. That  whenever  any  Form  of  Government  becomes  destruc- 
tive of  these  ends,  it  is  the  Right  of  the  people  to  alter  or  to  abolish 
it,  and  to  institute  new  Government,  laying  its  foundation  on  such 
principles  and  organizing  its  powers  in  such  form,  as  to  them  shall 
seem  most  likely  to  effect  their  Safety  and  Happiness.  Prudence,  in- 
deed, will  dictate  that  Governments  long  established  should  not  be 
changed  for  light  and  transcient  causes ;  and  accordingly  all  experi- 
ence hath  shown,  that  mankind  are  more  disposed  to  suffer,  while 
evils  are  sufferable,  than  to  right  themselves  by  abolishing  the  forms 
to  which  they  are  accustomed.  But  when  a  long  train  of  abuses  and 
usurpations,  pursuing  invariably  the  same  Object,  evinces  a  design  to 
reduce  them  under  absolute  despotism,  it  is  their  right,  it  is  their 
duty,  to  throw  off  such  Government,  and  to  provide  new  Guards  for 
their  future  security. — Such  has  been  the  patient  sufferance  of  these 
Colonies ;  and  such  is  now  the  necessity  which  constrains  them  to 
alter  their  former  Systems  of  Government.  The  history  of  the  pres- 
ent King  of  Great  Britain  is  a  history  of  repeated  injuries  and  usur- 
pations, all  having  in  direct  object  the  establishment  of  an  absolute 
Tyranny  over  these  States.  To  prove  this,  let  Facts  be  submitted  to 
a  candid  world. 

He  has  refused  his  Assent  to  Laws,  the  most  wholesome  and 
necessary  for  the  public  good. 

He  has  forbidden  his  Governors  to  pass  Laws  of  immediate  and 
pressing  importance,  unless  suspended  in  their  operation  till  his 
Assent  shouFd  be  obtained ;  and  when  so  suspended,  he  has  utterly 
neglected  to  attend  to  them. 

He  has  refused  to  pass  other  laws  for  the  accommodation  of  large 
districts  of  people,  unless  those  people  would  relinquish  the  right  of 
Representation  in  the  Legislature,  a  right  inestimable  to  them  and 
formidable  to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places  unusual,  un- 
comfortable, and  distant  from  the  depository  of  their  Public  Records, 
for  the  sole  purpose  of  fatiguing  them  into  compliance  with  his 
measures. 

He  has  dissolved  Representative  Houses  repeatedly,  for  opposing 
with  manly  firmness  his  invasions  on  the  rights  of  the  people. 

He  has  refused  for  a  long  time,  after  such  dissolutions,  to  cause 
others  to  be  elected ;  whereby  the  Legislative  Powers,  incapable  of 
Annihilation,  have  returned  to  the  People  at  large  for  their  exercise ; 


454  THE  AMERICAN  GOVERNMENT. 

the  State  remaining  in  the  meantime  exposed  to  all  the  dangers  of 
invasion  from  without,  and  convulsions  within. 

He  has  endeavored  to  prevent  the  population  of  these  States ;  for 
that  purpose  obstructing  the  Laws  for  Naturalization  of  Foreigners: 
refusing  to  pass  others  to  encourage  their  migration  hither,  and  rais- 
ing the  conditions  of  new  Appropriations  of  Lands. 

He  has  obstructed  Jhe  Administration  of  Justice,  by  refusing  his 
Assent  to  Laws  for  establishing  Judiciary  Powers. 

He  has  made  Judges  dependent  on  his  Will  alone,  for  the  tenure 
of  their  offices,  and  the  amount  and  payment  of  their  salaries. 

He  has  erected  a  multitude  of  New  Offices,  and  sent  hither 
swarms  of  Officers  to  harrass  our  People,  and  eat  out  their  substance. 

He  has  kept  among  us,  in  times  of  peace,  Standing  Armies  without 
the  Consent  of  our  legislature. 

He  has  affected  to  render  the  Military  independent  of  and  supe- 
rior to  the  Civil  Power. 

He  has  combined  with  others  to  subject  us  to  a  jurisdiction  for- 
eign to  our  constitution,  and  unacknowledged  by  our  laws ;  giving 
his  assent  to  their  Acts  of  pretended  Legislation : 

For  quartering  large  bodies  of  armed  troops  among  us : 

For  Protecting  them,  by  a  mock  Trial,  from  Punishment  for  any 
murders  which  they  should  commit  on  the  inhabitants  of  these 
States : 

For  cutting  oflf  our  Trade  with  all  parts  of  the  world : 

For  imposing  taxes  on  us  without  our  consent : 

For  depriving  us  in  many  cases,  of  the  benefits  of  Trial  by  Jury : 

For  transporting  us  beyond  Seas  to  be  tried  for  pretended  oflFenses : 

For  abolishing  the  free  System  of  English  Laws  in  a  neighboring 
province,  establishing  therein  an  Arbitrary  government,  and  enlarg- 
ing its  Boundaries  so  as  to  render  it  at  once  an  example  and  fit  in- 
strument for  introducing  the  same  absolute  rule  into  these  Colonies: 

For  taking  away  our  Charters,  abolishing  our  most  valuable  Laws, 
and  altering  fundamentally  the  Forms  of  our  Governments: 

For  suspending  our  own  Legislatures,  and  declaring  themselves 
invested  with  power  to  legislate  for  us  in  all  cases  whatsoever. 

He  has  abdicated  Government  here,  by  declaring  us  out  of  his 
Protection  and  waging  War  against  us. 

He  has  plundered  our  Seas,  ravaged  our  Coasts,  burnt  our  towns 
and  destroyed  the  lives  of  our  people. 

He  is  at  this  time  transporting  large  armies  of  foreign  mercenaries 
to  complete  the  works  of  death,  desolation,  and  tyranny,  already  be- 
gun with  circumstances  of  Cruelty,  and  perfidy  scarcely  paralleled  in 
the  most  barbarous  ages,  and  totally  unworthy  the  Head  of  a  civilized 
nation. 


DECLARATION  OF  INDEPENDENCE.  455 

He  has  constrained  our  fellow  Citizens  taken  Captive  on  the  high 
Seas  to  bear  Arms  against  their  Country,  to  become  the  executioners 
of  their  friends  and  Brethren,  or  to  fall  themselves  by  their  Hands. 

He  has  excited  domestic  insurrections  amongst  us,  and  has  en- 
deavored to  bring  on  the  inhabitants  of  our  frontiers,  the  merciless 
Indian  Savages,  whose  known  rule  of  warfare  is  an  undistinguished 
destruction  of  ail  ages,  sexes  and  conditions. 

In  every  stage  of  these  Oppressions  We  have  Petitioned  for  Re- 
dress in  the  most  humble  terms :  Our  repeated  Petitions  have  been 
answered  only  by  repeated  injury.  A  Prince,  whose  character  is  thus 
marked  by  every  act  which  may  define  a  tyrant,  is  unfit  to  be  the 
ruler  of  a  free  People. 

Nor  have  we  been  wanting  in  attention  to  our  British  brethren. 
We  have  warned  them  from  time  to  time  of  attempts  by  their  legis- 
lature to  extend  an  unwarrantable  jurisdiction  over  us.  We  have  re- 
minded them  of  the  circumstances  of  our  emigration  and  settlement 
here.  We  have  appealed  to  their  native  justice  and  magnanimity, 
and  we  have  conjured  them  by  the  ties  of  our  common  kindred  to 
disavow  these  usurpations,  which  would  inevitably  interrupt  our  con- 
nections and  correspondence.  They  too  have  been  deaf  to  the  voice 
of  justice  and  of  consanguinity.  We  must,  therefore,  acquiesce  in 
the  necessity  which  denounces  our  Separation,  and  hold  them,  as  we 
hold  the  rest  of  mankind.  Enemies  in  War,  in  Peace  Friends. 

We,  therefore,  the  representatives  of  the  United  States  of  America, 
in  General  Congress,  Assembled,  appealing  to  the  Supreme  Judge  of 
the  world  for  the  rectitude  of  our  intentions,  do,  in  the  Name,  and  by 
Authority  of  the  good  People  of  these  Colonies,  solemnly  publish 
and  declare.  That  these  United  Colonies  are,  and  of  Right  ought  to 
be  Free  and  Independent  States ;  that  they  are  Absolved  from  all 
Allegiance  to  the  British  Crown,  and  that  all  political  connection  be- 
tween them  and  the  State  of  Great  Britain,  is  and  ought  to  be  totally 
dissolved;  and  that  as  Free  and  Independent  States,  they  have  full 
power  to  levy  War,  conclude  Peace,  contract  Alliances,  establish 
Commerce,  and  to  do  all  other  Acts  and  Things  which  Independent 
States,  may  of  right  do.  And  for  the  support  of  this  Declaration, 
with  a  firm  reliance  on  the  Protection  of  Divine  Providence,  we  mu- 
tually pledge  to  each  other  our  Lives,  our  Fortunes  and  our  sacred 
Honor. 

[Signed  by  John  Hancock  and  fifty-seven  others,  repre- 
senting all  the  States.] 


456  THE  AMERICAN  GOVERNMENT. 

IX.    ARTICLES  OF  CONFEDERATION.— 1777. 

An  outline  historical  sketch  of  the  Articles  of  Confedera- 
tion is  given  in  Chapters  V.  and  VI.  of  this  work.  See  bibli- 
ographies prefixed  to  those  chapters.  The .  articles  were 
agreed  upon  by  Congress  November  15,  1777,  and  were 
ratified  by  Massachusetts,  Rhode  Island,  Connecticut,  New 
York,  Pennsylvania,  Virginia,  and  South  Carolina,  July  9, 
1778;  by  North  Carolina,  July  21,  1778;  by  Georgia,  July 
24,  1778;  by  New  Jersey,  November  26,  1778;  by  Delaware, 
February  22,  1779;  by  Maryland,  March  i,  1781.  The  ratifi- 
cations were  given  by  the  delegates  of  the  several  States  in 
Congress,  under  instructions  given  them  by  the  State  legis- 
latures. 

To  all  to  whom  these  presents  shall  come,  we  the  undersigned  Dele- 
gates of  the  States  aMxed  to  our  names,  send  greeting. 
Whereas  the  Delegates  of  the  United  States  of  America  in  Con- 
gress assembled  did  on  the  fifteenth  day  of  November  in  the  Year  of 
our  Lord  One  Thousand  Seven  Hundred  and  Seventy-seven,  and  in 
the  Second  Year  of  the  Independence  of  America  agree  to  certain 
articles  of  confederation  and  perpetual  Union  betv^reen  the  States  of 
New  Hampshire,  Massachusetts  Bay,  Rhode  Island  and  Providence 
Plantations,  Connecticut,  New  York,  New  Jersey,  Pennsylvania, 
Delaware,  Maryland,  Virginia,  North  Carolina,  South  Carolina  and 
Georgia,  in  the  Words  following,  viz. : 

"  Articles  of  Confederation  and  perpetual  union  between  the  States 
of  New  Hampshire,  Massachusetts-hay,  Rhode  Island  and  Provi- 
dence Plantations,  Connecticut,  New  York,  New  Jersey,  Pennsyl- 
vania, Delaware,  Maryland,  Virginia,  North  Carolina,  South 
Carolina  and  Georgia." 

Article  I. — The  style  of  this  Confederacy  shall  be,  "The  United 
States  of  America." 

Article  II. — Each  State  retains  its  sovereignty,  freedom  and  inde- 
pendence, and  every  power,  jurisdiction  and  right,  which  is  not  by 
this  confederation  expressly  delegated  to  the  United  States,  in  Con- 
gress assembled. 

Article  III. — The  said  States  hereby  severally  enter  into  a  firm 
league  of  friendship  with  each  other,  for  their  common  defence,  the 
security  of  their  liberties,  and  their   mutual  and   general   welfare, 


ARTICLES  OF  CONFEDERATION.  457 

binding  themselves  to  assist  each  other,  against  all  force  offered  to, 
or  attacks  made  upon  them,  or  any  of  them,  on  acccount  of  religion, 
sovereignty,  trade,  or  any  other  pretence  whatever. 

Article  IV. — The  better  to  secure  and  perpetuate  mutual  friend- 
ship and  intercourse  among  the  people  of  the  different  States  in  this 
Union,  the  free  inhabitants  of  each  of  these  States,  paupers,  vaga- 
bonds and  fugitives  from  justice  excepted,  shall  be  entitled  to  all 
privileges  and  immunities  of  free  citizens  in  the  several  States;  and 
the  people  of  each  State  shall  have  free  ingress  and  regress  to  and 
from  any  other  State,  and  shall  enjoy  therein  all  the  privileges  of 
trade  and  commerce,  subject  to  the  same  duties,  impositions  and  re- 
strictions as  the  inhabitants  thereof  respectively,  provided  that  such 
restrictions  shall  not  extend  so  far  as  to  prevent  the  removal  of 
property  imported  into  any  State,  to  any  other  State  of  which  the 
owner  is  an  inhabitant ;  provided  also  that  no  imposition,  duties  or 
restriction  shall  be  laid  by  any  State,  on  the  property  of  the  United 
States,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with  treason,  felony,  or  other 
high  misdemeanor  in  any  State,  shall  flee  from  justice,  and  be  found 
in  any  of  the  United  States,  he  shall  upon  demand  of  the  Governor 
or  Executive  power  of  the  State  from  which  he  fled,  be  delivered  up 
and  removed  to  the  State  having  jurisdiction  of  his  offense. 

Full  faith  and  credit  shall  be  given  in  each  of  these  States  to  the 
records,  acts,  and  judicial  proceedings  of  the  courts  and  magistrates 
of  every  other  State. 

Article  V. — For  the  more  convenient  management  of  the  general 
interests  of  the  United  States,  delegates  shall  be  annually  appointed 
in  such  manner  as  the  Legislature  of  each  State  shall  direct,  to  meet 
in  Congress  on  the  first  Monday  in  November,  in  every  year,  with  a 
power  reserved  to  each  State,  to  recall  its  delegates,  or  any  of  them, 
at  any  time  within  the  year,  and  to  send  others  in  their  stead,  for  the 
remainder  of  the  year. 

No  State  shall  be  represented  in  Congress  by  less  than  two,  nor 
by  more  than  seven  members ;  and  no  person  shall  be  capable  of 
being  a  delegate  for  more  than  three  years  in  any  term  of  six  years ; 
nor  shall  any  person,  being  a  delegate,  be  capable  of  holding  any 
office  under  the  United  States,  for  which  he,  or  another  for  his  bene-  ^ 
fit  receives  any  salary,  fees  or  emolument  of  any  kind. 

Each  State  shall  maintain  its  own  delegates  in  a  meeting  of  the 
States,  and  while  they  act  as  members  of  the  committee  of  the  States. 

In  determining  questions  in  the  United  States,  in  Congress  assem- 
bled, each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  impeached 
or  questioned  in  any  court,  or  place  out  of  Congress,  and  the  mem- 


458  THE  AMERICAN  GOVERNMENT. 

bers  of  Congress  shall  be  protected  in  their  persons  from  arrests  and  '.^•■\ 
imprisonments,  during   the  time  of  their  going  to  and   from,   and 
attendance  on  Congress,  except  for  treason,  felony,  or  breach  of  the 
peace. 

Article  VI. — No  State  without  the  consent  of  the  United  States  in 
Congress  assembled,  shall  send  any  embassy  to,  or  receive  any  em- 
bassy from,  or  enter  into  any  conferencce,  agreement,  alliance  or 
treaty  with  any  king,  prince  or  State;  nor  shall  any  person  holding 
any  oflSce  of  profit  or  trust  under  the  United  States,  or  any  of  them, 
accept  of  any  present,  emolument,  office  or  title  of  any  kind  whatever 
from  any  king,  prince  or  foreign  State ;  nor  shall  the  United  States 
in  Congress  assembled,  or  any  of  them,  grant  any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty,  confederation 
or  alliance  whatever  between  them,  without  the  consent  of  the 
United  States  in  Congress  assembled,  specifying  accurately  the  pur- 
poses for  which  the  same  is  to  be  entered  into,  and  how  long  it  shall 
continue. 

No  State  shall  lay  any  imposts  or  duties,  which  may  interfere  with 
any  stipulations  in  treaties,  entered  into  by  the  United  States  in  Con- 
gress assembled,  with  any  king,  prince  or  State,  in  pursuance  of  any 
treaties  already  proposed  by  Congress,  to  the  courts  of  France  and 
Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  State, 
except  such  number  only,  as  shall  be  deemed  necessary  by  the  United 
States  in  Congress  assembled,  for  the  defence  of  such  State,  or  its 
trade;  nor  shall  any  body  of  forces  be  kept  up  by  any  State,  in  time 
of  peace,  except  such  number  only,  as  in  the  judgment  of  the  United 
States,  in  Congress  assembled,  shall  be  deemed  requisite  to  garrison 
the  forts  necessary  for  the  defence  of  such  State ;  but  every  State 
shall  always  keep  up  a  well  regulated  and  disciplined  militia,  suffi- 
ciently armed  and  accoutred,  and  shall  provide  and  constantly  have 
ready  for  use,  in  public  stores,  a  due  number  of  field  pieces  and  tents, 
and  a  proper  quantity  of  arms,  ammunition  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent  of  the 
United  States  in  Congress  assembled,  unless  such  State  be  actually 
invaded  by  enemies,  or  shall  have  received  certain  advice  of  a  resolu- 
tion being  formed  by  some  nation  of  Indians  to  invade  such  State, 
and  the  danger  is  so  imminent  as  not  to  admit  of  a  delay,  till  the 
United  States  in  Congress  assembled  can  be  consulted ;  nor  shall  any 
State  grant  commissions  to  any  ships  or  vessels  of  war,  nor  letters 
of  marque  or  reprisal,  except  it  be  after  a  declaration  of  war  by  the 
United  States  in  Congress  assembled,  and  then  only  against  the  king- 
dom or  State  and  the  subjects  thereof,  against  which  war  has  been  so 
declared,  and  under  such  regulations  as  shall  be  established  by  the 


ARTICLES  OF  CONFEDERATION.  459 

United  States  in  Congress  assembled,  unless  such  State  be  infested 
by  pirates,  in  which  case  vessels  of  war  may  be  fitted  out  for  that 
occasion,  and  kept  so  long  as  the  danger  shall  continue,  or  until  the 
United  States  in  Congress  assembled  shall  determine  otherwise. 

Article  VII. — When  land  forces  are  raised  by  any  State  for  the 
common  defence,  all  officers  of  or  under  the  rank  of  colonel,  shall 
be  appointed  by  the  Legislature  of  each  State  respectively  by  whom 
such  forces  shall  be  raised,  or  in  such  manner  as  such  State  shall  di- 
rect, and  all  vacancies  shall  be  filled  up  by  the  State  which  first 
made  the  appointment. 

Article  VIII. — All  charges  of  war,  and  all  other  expenses  that 
shall  be  incurred  for  the  common  defense  or  general  welfare,  and 
allowed  by  the  United  States  in  Congress  assembled,  shall  be  de- 
frayed out  of  a  common  treasury,  which  shall  be  supplied  by  the  sev- 
eral States,  in  proportion  to  the  value  of  all  land  within  each  State, 
granted  to  or  surveyed  for  any  person,  as  such  land  and  the  buildings 
and  improvements  thereon  shall  be  estimated  according  to  such  mode 
as  the  United  States  in  Congress  assembled,  shall  from  time  to  time 
direct  and  appoint. 

The  taxes  for  paying  that  proportion  shall  be  laid  and  levied  by 
the  authority  and  direction  of  the  Legislatures  of  the  several  States 
within  the  time  agreed  upon  by  the  United  States  in  Congress  as- 
sembled. 

Article  IX. — The  United  States  in  Congress  assembled,  shall  have 
the  sole  and  exclusive  right  and  power  of  determining  on  peace  and 
war,  except  in  the  cases  mentioned  in  the  sixth  article — of  sending 
and  receiving  ambassadors — entering  into  treaties  and  alliances,  pro- 
vided that  no  treaty  of  commerce  shall  be  made  whereby  the  Legis- 
lative power  of  the  respective  States  shall  be  restrained  from  impos- 
ing such  imposts  and  duties  on  foreignors,  as  their  own  people  are 
subjected  to,  or  from  prohibiting  the  exportation  or  importation  of 
any  species  of  goods  or  commodities  whatsoever — of  establishing 
rules  for  deciding  in  all  cases,  what  captures  on  land  or  water  shall 
be  legal,  and  in  what  manner  prizes  taken  by  land  or  naval  forces 
in  the  service  of  the  United  States  shall  be  divided  or  appropriated 
—  of  granting  letters  of  marque  and  reprisal  in  times  of  peace  —  ap- 
pointing courts  for  the  trial  of  piracies  and  felonies  committed  on 
the  high  seas  and. establishing  courts  for  receiving  and  determining 
finally  appeals  in  all  cases  of  captures,  provided  that  no  member  of 
Congress  shall  be  appointed  a  judge  of  any  of  the  said  courts. 

The  United  States  in  Congress  assembled  shall  also  be  the  last 
resort  on  appeal  in  all  disputes  and  differences  now  subsisting  or 
that  hereafter  may  arise  between  two  or  more  States  concerning 
boundary,  jurisdiction  or  any  other  cause  whatever;  which  author- 


46o  THE  AMERICAN  GOVERNMENT. 

ity  shall  always  be  exercised  in  the  manner  following:  Whenever 
the  legislative  or  executive  authority  or  lawful  agent  of  any  State 
in  controversy  with  another  shall  present  a  petition  to  Congress, 
stating  the  matter  in  question  and  praying  for  a  hearing,  notice 
thereof  shall  be  given  by  order  of  Congress  to  the  legislative  or  ex- 
ecutive authority  of  the  other  State  in  controversy,  and  a  day  as- 
signed for  the  appearance  of  the  parties  by  their  lawful  agents,  who 
shall  then  be  directed  to  appoint  by  joint  consent,  commissioners  or 
judges  to  constitute  a  court  for  hearing  and  determining  the  matter 
in  question :  but  if  they  cannot  agree,  Congress  shall  name  three  per- 
sons out  of  each  of  the  United  States,  and  from  the  list  of  such  per- 
sons each  party  shall  alternately  strike  out  one,  the  petitioners  begin- 
ning, until  the  number  shall  be  reduced  to  thirteen ;  and  from  that 
number  not  less  than  seven,  nor  more  than  nine  names  as  Congress 
shall  direct,  shall  in  the  presence  of  Congress  be  drawn  out  by  lot, 
and  the  persons  whose  names  shall  be  so  drawn  or  any  five  of  them, 
shall  be  commissioners  or  judges,  to  hear  and  finally  determine  the 
controversy,  so  always  as  a  major  part  of  the  judges  who  shall  hear 
the  cause  shall  agree  in  the  determination :  and  if  either  party  shall 
neglect  to  attend  at  the  day  appointed,  without  showing  reasons, 
which  Congress  shall  judge  sufficient,  or  being  present  shall  refuse 
to  strike,  the  Congress  shall  proceed  to  nominate  three  persons  out 
of  each  State,  and  the  Secretary  of  Congress  shall  strike  in  behalf 
of  such  party  absent  or  refusing;  and  the  judgment  and  sentence 
of  the  cQurt  to  be  appointed,  in  the  manner  before  prescribed,  shall 
be  final  and  conclusive ;  and  if  any  of  the  parties  shall  refuse  to  sub- 
mit to  the  -authority  of  such  court,  or  to  appear  or  defend  their  claim 
or  cause,  the  court  shall  nevertheless  proceed  to  pronounce  sentence, 
or  judgment,  which  shall  in  like  manner  be  final  and  decisive,  the 
judgment  or  sentence  and  other  proceedings  being  in  either  case 
transmitted  to  Congress,  and  lodged  among  the  acts  of  Congress  for 
the  security  of  the  parties  concerned :  provided  that  every  commis- 
sioner, before  he  sits  in  judgment,  shall  J^ke  an  oath  to  be  admin- 
istered by  one  of  the  judges  of  the  supreme  or  superior  court  of 
the  State  where  the  cause  shall  be  tried,  "  well  and  truly  to  hear  and 
determine  the  matter  in  question,  according  to  the  best  of  his  judg- 
ment, without  favor,  affection  or  hope  of  reward " :  provided  also 
that  no  State  shall  be  deprived  of  territory  for, the  benefit  of  the 
United  States. 

All  controversies  concerning  the  private  right  of  soil  claimed 
under  different  grants  of  two  or  more  States,  whose  jurisdiction  as 
they  may  respect  such  lands,  and  the  States  which  passed  such  grants 
are  adjusted,  the  said  grants  ©r  either  of  them  being  at  the  same  time 
claimed  to  have  originated  antecedents  to  such  settlement  of  juris- 


ARTICLES  OF  CONFEDERATION.  461 

diction,  shall  on  the  petition  of  either  party  to  the  Congress  of  the 
United  States,  be  finally  determined  as  near  as  may  be  in  the  same 
manner  as  is  before  prescribed  for  deciding  disputes  respecting  terri- 
torial jurisdiction  between  different  States. 

The  United  States  in  Congress  assembled  shall  also  have  the  sole 
and  exclusive  right  and  power  of  regulating  the  alloy  and  value  of 
coin  struck  by  their  own  authority,  or  by  that  of  the  respective 
States, — fixing  the  standard  of  weights  and  measures  throughout  the 
United  States — regulating  the  trade  and  managing  all  affairs  with 
the  Indians,  not  members  of  any  of  the  States,  provided  that  the 
legislative  right  of  any  State  within  its  own  limits  be  not  infringed 
or  violated — establishing  and  regulating  post-offices  from  one  State  to 
another,  throughout  all  the  United  States,  and  exacting  such  postage 
on  the  papers  passing  through  the  same  as  may  be  requisite  to  defray 
the  expenses  of  the  said  office — appointing  all  officers  of  the  land 
forces,  in  the  service  of  the  United  States,  excepting  regimental  offi- 
cers— appointing  all  the  officers  of  the  naval  forces,  and  commission- 
ing all  officers  whatever  in  the  service  of  the  United  States — making 
rules  for  the  government  and  regulation  of  the  said  land  and  naval 
forces,  and  directing  their  operations. 

The  United  States  in  Congress  assembled  shall  have  authority  to 
appoint  a  committee,  to  sit  in  the  recess  of  Congress,  to  be  denom- 
inated "  a  Committee  of  the  States,"  and  to  consist  of  one  delegate 
from  each  State;  and  to  appoint  such  other  committees  and  civil  offi- 
cers as  may  be  necessary  for  managing  the  general  affairs  'of  the 
United  States  under  their  direction — to  appoint  one  of  their  number 
to  preside,  provided  that  no  person  be  allowed  to  serve  in  the  office 
of  president  more  than  one  year  in  any  term  of  three  years ;  to  ascer- 
tain the  necessary  sums  of  money  to  be  raised  for  the  service  of  the 
United  States,  and  to  appropriate  and  apply  the  same  for  defraying 
the  public  expenses — to  borrbw  money,  or  emit  bills  on  the  credit  of 
the  United  States,  transmitting  every  half  year  to  the  respective 
States  an  a<:count  of  the  sum^  of  money  so  borrowed  or  emitted — to 
build  and  equip  a  navy — to  agree  upon  the  number  of  land  forces, 
and  to  make  requisitions  from  each  State  for  its  quota,  in  proportion 
to  the  number  of  white  inhabitants  in  such  State ;  which  requisition 
shall  be  binding,  and  thereupon  the  Legislature  of  each  State  shall 
appoint  the  regimental  officers,  raise  the  men  and  cloath,  arm  and 
equip  them  in  a  soldier-like  manner,  at  the  expense  of  the  United 
States;  and  the  officers  and  men  so  cloathed,  armed  and  equipped 
shall  march  to  the  place  appointed,  and  within  the  time  agreed  on 
by  the  United  States  in  Congress  assembled ;  but  if  the  United  States 
in  Congress  assembled  shall,  on  consideration  of  circumstances  judge 
proper  that  any  State  should  not  raise  men,  or  should  raise  a  smaller 


462  THE  AMERICAN  GOVERN  MEMT. 

number  than  its  quota,  and  that  any  other  State  should  raise  a 
greater  number  of  men  than  the  quota  thereof,  such  extra  number 
shall  be  raised,  officered,  cloathed,  armed  and  equipped  in  the  same 
manner  as  the  quota  of  such  State,  unless  the  legislature  of  such 
State  shall  judge  that  such  extra  number  cannot  be  safely  spared  out 
of  the  same,  in  which  case  they  shall  raise,  officer,  cloath,  arm  and 
equip  as  many  of  such  extra  number  as  they  judge  can  be  safely 
spared.  And  the  officers  and  men  so  cloathed,  armed  and  equipped, 
shall  march  to  the  place  appointed,  and  within  the  time  agreed  on  by 
the  United  States  in  Congress  assembled. 

The  United  States  in  Congress  assembled  shall  never  engage  in  a 
war,  nor  grant  letters  of  marque  and  reprisal  in  time  of  peace,  nor 
enter  into  any  treaties  or  alliances,  nor  coin  money,  nor  regulate 
the  value  thereof,  nor  ascertain  the  sums  and  expenses  necessary  for 
the  defense  and  welfare  of  the  United  States,  or  any  of  them,  nor 
emit  bills,  nor  borrow  money  on  the  credit  of  the  United  States,  nor 
appropriate  money,  nor  agree  upon  the  number  of  vessels  of  war,  to 
be  built  or  purchased,  or  the  number  of  land  or  sea  forces  to  be 
raised,  nor  appoint  a  commander-in-chief  of  the  army  or  navy,  unless 
nine  States  assent  to  the  same ;  nor  shall  a  question  on  any  other 
point,  except  for  adjourning  from  day  to  day  be  determined,  unless 
by  the  votes  of  a  majority  of  the  United  States  in  Congress 
assembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn 
to  any  time  within  the  year,  and  to  any  place  within  the  United 
States,  so  that  no  period  of  adjournment  be  for  a  longer  duration 
than  the  space  of  six  months,  and  shall  publish  the  journal  of  their 
proceedings  monthly,  except  such  parts  thereof  relating  to  treaties, 
alliances  or  military  operations,  as  in  their  judgment  require  secrecy; 
and  the  yeas  and  nays  of  the  delegates  of  each  State  on  any  question 
shall  be  entered  on  the  journal,  when  it  is  desired  by  any  delegate; 
and  the  delegates  of  a  State,  or  any  of  them,  at  his  or  their  request 
shall  be  furnished  with  a  transcript  of  the  said  Journal,  except  such 
parts  as  are  above  excepted,  to  lay  before  the  Legislatures  of  the 
several  States. 

Article  X. — The  committee  of  the  States,  or  any  nine  of  them, 
shall  be  authorized  to  execute,  in  the  recess  of  Congress,  such  of  the 
powers  of  Congress  as  the  United  States  in  Congress  assembled,  by 
the  consent  of  nine  States,  shall  from  time  to  time  think  expedient  to 
vest  them  with ;  provided  that  no  power  be  delegated  to  the  said 
committee  for  the  exercise  of  which  by  the  articles  of  confederation, 
the  voice  of  nine  States,  in  the  Congress  of  the  United  States 
assembled  is  requisite. 

Article  XI. — Canada  acceding  to  this  confederation,  and  joining 


ARTICLES  OF  CONFEDERATION.  463 

in  the  measures  of  the  United  States,  shall  be  admitted  into,  and  en- 
titled to  all  the  advantages  of  this  Union ;  but  no  other  colony  shall 
be  admitted  into  the  same,  unless  such  admission  be  agreed  to  by 
nine  States. 

Article  XII. — All  bills  of  credit  emitted,  monies  borrowed  and 
debts  qsntracted  by,  or  under  the  authority  of  Congress,  before  the 
assembling  of  the  United  States,  in  pursuance  of  the  present  confed- 
eration, shall  be  deemed  and  considered  as  a  charge  against  the 
United  States,  for  payment  and  satisfaction  whereof  the  said  United 
States,  and  the  public  faith  are  hereby  solemnly  pledged. 

Article  XIII. — Every  State  shall  abide  by  the  determinations  of 
the  United  States  in  Congress  assembled,  on  all  questions  which  by 
this  confederation  are  submitted  to  them.  And  the  articles  of  this 
confederation  shall  be  inviolably  observed  by  every  State,  and  the 
Union  shall  be  perpetual ;  nor  shall  any  alteration  at  any  time  here- 
after be  made  in  any  of  them;  unless  such  alteration  be  agreed  to  in 
a  Congress  of  the  United  States,  and  be  afterwards  confirmed  by  the 
Legislatures  of  every  State. 

And  whereas  it  has  pleased  the  Great  Governor  of  the  world  to 
incline  the  hearts  of  the  Legislatures  we  respectively  represent  in 
Congress,  to  approve  of,  and  to  authorize  us  to  ratify  the  said  articles 
of  confederation  and  perpetual  union.  Know  ye  that  we,  the  under- 
signed delegates,  by  virtue  of  the  power  and  authority  to  us  given  for 
that  purpose,  do  by  these  presents,  in  the  name  and  in  behalf  of  our 
respective  constituents,  fully  and  entirely  ratify  and  confirm  each 
and  every  of  the  said  articles  of  confederation  and  perpetual  union, 
and  all  and  singular  the  matters  and  things  therein  contained :  and 
we  do  further  solemnly  plight  and  engage  the  faith  of  our  respective 
constituents,  that  they  shall  abide  by  the  determinations  of  the 
United  States  in  Congress  assembled,  on  all  questions,  which  by  the 
said  confederation  are  submitted  to  them.  And  that  the  articles 
thereof  shall  be  inviolably  observed  by  the  States  we  respectively 
represent,  and  that  the  Union  shall  be  perpetual. 


^-^^^^Jtt^  Myf(d3  ^'l  i'^^r^t^  '^- 


464  THE  AMERICAN  GOVERNMENT. 

X.    CONSTITUTION  OF  THE  UNITED  STATES 
OF  AMERICA. 

For  the  history  of  the  framing  and  ratification  of  the 
Constitution,  with  bibHographies,  see  Chapters  VIL4K.  in- 
clusive, of  this  work.  The  figures  marking  the  clauses  of  the 
several  sections  are  not  found  in  the  original. 

CONSTITUTION  OF  THE  UNITED  STATES.— 1787. 

We  the  People  of  the  United  States,  in  Order  to  form  a  more  per- 
fect Union,  establish  Justice,  insure  domestic  Tranquility,  provide 
for  the  common  defence,  promote  the  general  Welfare,  and  secure 
the  Blessings  of  Liberty  to  ourselves  and  our  Posterity,  do  ordain 
and  establish  this  Constitution  for  the  United  States  of  America. 

ARTICLE  I. 

r 

Section  i. 

All  legislative  Powers  herein  granted  shall  be  vested  in  a  Con- 
gress of  the  United  States,  which  shall  consist  of  a  Senate  and 
House  of  Representatives. 

Section  2. 

1.  Tlie  House  of  Representatives  shall  be  composed  of  Members 
chosen  every  second  Year  by  the  People  of  the  several  States,  and 
the  Electors  in  each  State  shall  have  the  Qualifications  requisite  for 
Electors  of  the  most  numerous  Branch  of  the  State  Legislature. 

2.  No  Person  shall  be  a  Representative  who  shall  not  have  at- 
tained to  the  Age  of  twenty-five  Years,  and  been  seven  Years  a  Citi- 
zen of  the  United  States,  and  who  shall  not,  when  elected,  be  an 
Inhabitant  of  that  State  in  which  he  shall  be  chosen. 

3.  Representatives  and  direct  Taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union,  accord- 
ing to  their  respective  Numbers,  which  shall  be  determined  by  add- 
ing to  the  whole  Number  of  free  Persons,  including  those  bound  to 
Service  for  a  Term  of  Y'ears,  and  excluding  Indians  not  taxed,  three 
fifths  of  all  other  Persons.  The  actual  Enumeration  shall  be  made 
within  three  Years  after  the  first  Meeting  of  the  Congress  of  the 
United  States,  and  within  every  subsequent  Term  of  ten  Years,  in 
such  Manner  as  they  shall  by  Law  direct.    The  Number  of  Repre- 


xl-tAU« — - 


CONSTITUTION  OF  THE  UNITED  STATES.        465 

sentatives  shall  not  exceed  one  for  every  thirty  Thousand,  but  each 
State  shall  have  at  Least  one  Representative;  and  until  such  enu- 
meration shall  be  made,  the  State  of  New  Hampshire  shall  be  enti- 
tled to  chuse  three,  Massachusetts  eight,  Rhode-Island  and  Provi- 
dence Plantations  one,  Connecticut  five.  New- York  six.  New  Jersey 
four,  Pennsylvania  eight,  Delaware  one,  Maryland  six,  Virginia  ten, 
North  Carolina  five.  South  Carolina  five,  and  Georgia  three. 

4.  When  vacancies  happen  in  the  Representation  from  any  State, 
the  Executive  Authority  thereof  shall  issue  Writs  of  Election  to  fill 
such  Vacancies. 

5.  The  House  of  Representatives  shall  chuse  their  Speaker  and 
other  Officers;  and  shall  have  the  sole  Power  of  Impeachment. 

Section  3. 

1.  The  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  State,  chosen  by  the  Legislature  thereof,  for  six 
Years ;  and  each  Senator  shall  have  one  Vote. 

2.  Immediately  after  they  shall  be  assembled  in  Consequence  of 
the  first  Election,  they  shall  be  divided  as  equally  as  may  be  into 
three  Classes.  The  Seats  of  the  Senators  of  the  first  Class  shall  be 
vacated  at  the  Expiration  of  the  second  year,  of  the  second  Class  at 
the  Expiration  of  the  fourth  Year,  and  of  the  third  Class  at  the  Ex- 
piration of  the  sixth  Year,  so  that  one-third  may  be  chosen  every 
second  Year ;  and  if  Vacancies  happen  by  Resignation,  or  otherwise, 
during  the  Recess  of  the  Legislature  of  any  State,  the  Executive 
thereof  may  make  temporary  Appointments  until  the  next  Meeting 
of  the  Legislature,  which  shall  then  fill  such  Vacancies. 

3.  No  Person  shall  be  a  Senator  who  shall  not  have  attained  to 
the  Age  of  thirty  Years,  and  been  nine  Years  a  Citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  Inhabitant  o£ 
that  State  for  which  he  shall  be  chosen. 

4.  The  Vice  President  of  the  United  States  shall  be  President 
of  the  Senate,  but  shall  have  no  Vote,  unless  they  be  equally  divided. 

5.  The  Senate  shall  chuse  their  other  Officers,  and  also  a  Presi- 
dent pro  tempore,  in  the  Absence  of  the  Vice  President,  or  when  he 
shall  exercise  the  Office  of  President  of  the  United  States. 

6.  The  Senate  shall  have  the  sole  Power  to  try  all  Impeach- 
ments. When  sitting  for  that  Purpose,  they  shall  be  on  Oath  or 
.\ffirmation.  When  the  President  of  the  United  States  is  tried,  the 
Chief  Justice  shall  preside :  And  no  Person  shall  be  convicted  with- 
out the  Concurrence  of  two  thirds  of  the  Members  present. 

7.  Judgment  in  Cases  of  Impeachment  shall  not  extend  further 
than  to  removal  from  Office  and  disqualification  to  hold  and  enjoy 
any  Office  of  honor,  Trust  or  Profit  under  the  United  States:  but  the 

AM.     GOV. — 30 


466  THE  AMERICAN  GOVERNMENT. 

Party  convicted  shall  nevertheless  be  liable  and  subject  to  Indict- 
ment, Trial,  Judgment  and  Punishment,  according  to  Law. 

Section  4. 

1.  The  Times,  Places  and  Manner  of  holding  Elections  for  Sena- 
tors and  Representatives,  shall  be  prescribed  in  each  State  by  the 
Legislature  thereof;  but  the  Congress  may  at  any  time  by  Law  make 
or  alter  such  Regulations,  except  as  to  the  Places  of  chusing  Sena- 
tors. 

2.  The  Congress  shall  assemble  at  least  once  in  every  Year,  and 
such  meeting  shall  be  on  the  first  Monday  in  December,  unless  they 
shall  by  Law  appoint  a  different  Day. 

Section  5. 

I.  Each  House  shall  be  the  Judge  of  the  Elections,  Returns  and 
Qualifications  of  its  own  Members,  and  a  Majority  of  each  shall  con- 
stitute a  Quorum  to  do  Business ;  but  a  smaller  Number  may  ad- 
journ from  day  to  day,  and  may  be  authorized  to  compel  the  At- 
tendance of  absent  Members,  in  such  Manner,  and  under  such 
Penalties  as  each  House  may  provide. 

a.  Each  House  may  determine  the  Rules  of  its  Proceedings, 
punish  its  Members  for  disorderly  Behavior,  and,  with  the  Concur- 
rence of  two  thirds,  expel  a  Member. 

3.  Each  House  shall  keep  a  Journal  of  its  Proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  Parts  as  may  in  their 
Judgment  require  Secrecy ;  and  the  Yeas  and  Nays  of  the  Members 
of  either  House  on  any  question  shall,  at  the  Desire  of  one  fifth  of 
those  present,  be  entered  on  the  Journal. 

4.  Neither  House,  during  the  Session  of  Congress,  shall,  without 
the  Consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to 
any  other  Place  than  that  in  which  the  two  Houses  shall  be  sitting. 

Section  6. 

1.  The  Senators  and  Representatives  shall  receive  a  Compensa- 
tion for  their  Services,  to  be  ascertained  by  Law,  and  paid  out  of 
the  Treasury  of  the  United  States.  They  shall  in  all  Cases,  except 
Treason,  Felony  and  Breach  of  the  Peace,  be  privileged  from  Ar- 
rest during  their  Attendance  at  the  Session  of  their  respective 
Houses,  and  in  going  to  and  returning  from  the  same ;  and  for  any 
Speech  or  Debate  in  either  House,  they  shall  not  be  questioned  in 
any  other  Place. 

2.  No  Senator  or  Representative  shall,  during  the  Time  for  which 


CONSTITUTION  OF  THE  UNITED  STATES.        467 

he  was  elected,  be  appointed  to  any  civil  Office  under  the  Authority 
of  the  United  States,  which  shall  have  been  created,  or  the  Emolu- 
ments whereof  shall  have  been  encreased  during  such  time;  and  no 
Person  holding  any  Office  under  the  United  States,  shall  be  a  Mem- 
ber of  either  House  during  his  Continuance  in  Office. 

Section  7. 

1.  All  Bills  for  raising  Revenue  shall  originate  in  the  House  of 
Representatives ;  but  the  Senate  may  propose  or  concur  with  Amend- 
ments as  on  other  Bills. 

2.  Every  Bill  which  shall  have  passed  the  House  of  Representa- 
tives and  the  Senate,  shall,  before  it  become  a  Law,  be  presented  to 
the  President  of  the  United  States ;  If  he  approve  he  shall  sign  it, 
but  if  not  he  shall  return  it,  with  his  Objections  to  that  House  in 
which  it  shall  have  originated,  who  shall  enter  the  Objections  at 
large  on  their  Journal,  and  proceed  to  reconsider  it.  If  after  such 
Reconsideration  two  thirds  of  that  House  shall  agree  to  pass  the 
Bill,  it  shall  be  sent,  together  with  the  Objections,  to  the  other 
House,  by  which  it  shall  likewise  be  reconsidered,  and  if  approved 
by  two  thirds  of  that  House,  it  shall  become  a  Law.  But  in  all  such 
Cases  the  Votes  of  both  Houses  shall  be  determined  by  Yeas  and 
Nays,  and  the  Names  of  the  Persons  voting  for  and  against  the  Bill 
shall  be  entered  on  the  Journal  of  each  House  respectively.  If  any 
Bill  shall  not  be  returned  by  the  President  within  ten  Days  (Sundays 
excepted)  after  it  shall  have  been  presented  to  him,  the  Same  shall 
be  a  Law,  in  like  Manner  as  if  he  had  signed  it,  unless  the  Congress 
by  their  Adjournment  prevent  its  Return,  in  which  Case  it  shall  not 
be  a  Law. 

3.  Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence 
of  the  Senate  and  House  of  Representatives  may  be  necessary  (ex- 
cept on  a  question  of  Adjournment)  shall  be  presented  to  the  Presi- 
dent of  the  United  States ;  and  before  the  Same  shall  take  Effect, 
shall  be  approved  by  him,  or  being  disapproved  by  him,  shall  be  re- 
passed by  two  thirds  of  the  Senate  and  House  of  Representatives, 
according  to  the  Rules  and  Limitations  prescribed  in  the  Case  of  a 
Bill. 

•^   Section  8. 

1.  The  Congress  shall  have  Power  To  lay  and  collect  Taxes, 
Duties,  Imposts  and  Excises,  to  pay  the  Debts  and  provide  for  the 
common  Defence  and  general  Welfare  of  the  Unit^  States ;  but  all 
Duties,  Imposts  and  Excises  shall  be  uniform  throughout  the  United 
States ; 

2.  To  borrow  Money  on  the  credit  of  the  United  States ; 


468  THE  AMERICAN  GOVERNMENT. 

3.  To  regulate  Commerce  with  foreign  Nations,  and  among  the 
several  States,  and  with  the  Indian  Tribes; 

4.  To  establish  an  uniform  Rule  of  Naturalization,  and  uniform 
Laws  on  the  subject  of  Bankruptcies  throughout  the  United  States; 

5.  To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign 
Coin,  and  fix  the  Standard  of  Weights  and  Measures ; 

6.  To  provide  for  the  Punishment  of  counterfeiting  the  Secur- 
ities and  current  Coin  of  the  United  States; 

7.  To  establish  Post  Offices  and  post  Roads.; 

8.  To  promote  the  Progress  of  Science  and  useful  Arts,  by  secur- 
ing for  limited  Times  to  Authors  and  Inventors  the  exclusive  Right 
to  their  respective  Writings  and  Discoveries ; 

9.  To  constitute  Tribunals  inferior  to  the  supreme  Court ; 

10.  To  define  and  punish  Piracies  and  Felonies  committed  on 
the  high  Seas,  and  Offences  against  the  Law  of  Nations ; 

11.  To  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and 
make  Rules  concerning  Captures  on  Land  and  Water; 

12.  To  raise  and  support  Armies,  but  no  Appropriation  of  Money 
to  that  Use  shall  be  for  a  longer  Term  than  two  Years; 

13.  To  provide  and  maintain  a  navy ; 

14.  To  make  Rules  for  the  Government  and  Regulation  of  the 
land  and  naval  Forces ; 

15.  To  provide  for  calling  forth  the  Militia  to  execute  the  Laws 
of  the  Union,  suppress  Insurrections  and  repel  Invasions ; 

16.  To  provide  for  organizing,  arming,  and  disciplining,  the 
Militia,  and  for  governing  such  Part  of  them  as  may  be  employed  in 
the  Service  of  the  United  States,  reserving  to  the  States  respectively, 
the  Appointment  of  the  Officers,  and  the  Authority  of  training  the 
Militia  according  to  the  discipline  prescribed  by  Congress ; 

17.  To  exercise  exclusive  Legislation  in  all  Cases  whatsoever, 
over  such  District  (not  exceeding  ten  Miles  square)  as  may,  by  Ces- 
sion of  particular  States,  and  the  Acceptance  of  Congress,  become 
the  Seat  of  the  Government  of  the  United  States,  and  to  exercise 
like  Authority  over  all  Places  purchased  by  the  Consent  of  the  Leg- 
islature of  the  State  in  which  the  Same  shall  be,  for  the  Erection  of 
Forts,  Magazines,  Arsenals,  dock- Yards,  and  other  needful  Build- 
ings ; — And 

18.  To  make  all  Laws  which  shall  be  necessary  and  proper  for 
carrying  into  Execution  the  foregoing  Powers,  and  all  other  Powers 
vested  by  this  Constitution  in  the  Government  of  the  United  States, 
or  in  any  Department  or  Officer  thereof. 

Section  g. 

I.    The  Migration  or  Importation  of  such  Persons  as  any  of  the 


CONSTITUTION  OF  THE  UNITED  STATES.         469 

States  now  existing  shall  think  proper  to  admit,  shall  not  be  prohib- 
ited by  the  Congress  prior  to  the  Year  one  thousand  eight  hundred 
and  eight,  but  a  Tax  or  duty  may  be  imposed  on  such  Importation, 
not  exceeding  ten  dollars  for  each  Person. 

2.  The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be 
suspended,  unless  when  in  Cases  of  Rebellion  or  Invasion  the  public 
Safety  may  require  it. 

3.  No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 

4.  No  Capitation,  or  other  direct,  tax  shall  be  laid,  unless  in 
Proportion  to  the  Census  or  Enumeration  herein  before  directed  to 
be  taken. 

5.  No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from  any 
State. 

6.  No  Preference  shall  be  given  by  any  Regulation  of  Commerce 
or  Revenue  to  the  Ports  of  one  State  over  those  of  another:  nor 
shall  Vessels  bound  to,  or  from,  one  State,  be  obliged  to  enter,  clear, 
or  pay  Duties  in  another. 

7.  No  Money  shall  be  drawn  from  the  Treasury,  but  in  Conse- 
quence of  Appropriations  made  by  Law ;  and  a  regular  Statement 
and  Account  of  the  Receipts  and  Expenditures  of  all  public  Money 
shall  be  published  from  time  to  time. 

8.  No  Title  of  Nobility  shall  be  granted  by  the  United  States: 
And  no  Person  holding  any  Office  of  Profit  or  Trust  under  them, 
shall,  without  the  Consent  of  the  Congress,  accept  of  any  present. 
Emolument,  Office,  or  Title,  of  any  kind  whatever,  from  any  King, 
Prince,  or  foreign  State. 

/    Section  10. 

I.  No  State  shall  enter  into  any  Treaty,  Alliance,  or  Confedera- 
tion ;  grant  Letters  of  Marque  and  Reprisal ;  coin  Money ;  emit 
Bills  of  Credit ;  make  any  Thing  but  gold  and  silver  Coin  a  Tender 
in  Payment  of  Debts ;  pass  any  Bill  of  Attainder,  ex  post  facto  Law, 
or  Law  impairing  the  Obligation  of  Contracts,  or  grant  any  Title  of 
Nobility. 

2.  No  State  shall,  without  the  Consent  of  the  Congress,  lay  any 
Imposts  or  Duties  on  Imports  or  Exports,  except  what  may  be  abso- 
lutely necessary  for  executing  it's  inspection  Laws :  and  the  net 
Produce  of  all  Duties  and  Imposts,  laid  by  any  State  on  Imports 
or  Exports,  shall  be  for  the  Use  of  the  Treasury  of  the  United 
States;  and  all  such  Laws  shall  be  subject  to  the  Revision  and  Con- 
troul  of  the  Congfress. 

3.  No  State  shall,  without  the  Consent  of  Congress,  lay  any 
Duty  of  Tonnage,  keep  Troops,  or  Ships  of  War  in  time  of  Peace, 
enter  into  any  Agreement  or  Compact  with  another  State,  or  with  a 


^ 


470  THE  AMERICAN  GOVERNMENT. 

foreign  Power,  or  engage  in  War,  unless  actually  invaded,  or  in  such 
imminent  Danger  as  will  not  admit  of  delay. 

ARTICLE  II. 
Section  i. 

1.  The  executive  Power  shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall  hold  his  Office  during  the  Term 
of  four  Years,  and,  together  with  the  Vice  President,  chosen  for  the 
same  Term,  be  elected,  as  follows, 

2.  Each  State  shall  appoint,  in  such  Manner  as  the  Legislature 
thereof  may  direct,  a  Number  of  Electors,  equal  to  the  whole  Num- 
ber of  Senators  and  Representatives  to  which  the  State  may  be 
entitled  in  the  Congress :  but  no  Senator  or  Representative,  or  Per- 
son holding  an  Office  of  Trust  or  Profit  under  the  United  States, 
shall  be  appointed  an  Elector. 

[The  electors  shall  meet  in  their  respective  States,  and  vote  by 
ballot  for  two  Persons,  of  whom  one  at  least  shall  not  be  an  Inhabi- 
tant of  the  same  State  with  themselves.  And  they  shall  make  a 
list  of  all  the  Persons  voted  for,  and  of  the  Number  of  Votes  for 
each ;  which  List  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  Seat  of  the  Government  of  the  United  States,  directed  to  the 
President  of  the  Senate.  The  President  of  the  Senate  shall,  in  the 
Presence  of  the  Senate  and  House  of  Representatives,  open  all 
the  Certificates,  and  the  Votes  shall  then  be  counted.  The  person 
having  the  greatest  Number  of  Votes  shall  be  the  President,  if  such 
Number  be  a  Majority  of  the  whole  Number  of  Electors  appointed; 
and  if  there  be  more  than  one  who  have  such  Majority,  and  have  an 
equal  Number  of  Votes,  then  the  House  of  Representatives  shall  im- 
mediately chuse  by  Ballot  one  of  them  for  President;  and  if  no 
Person  have  a  Majority,  then  from  the  five  highest  on  the  List  the 
said  House  shall  in  like  Manner  chuse  the  President.  But  in  chus- 
ing  the  President,  the  Votes  shall  be  taken  by  States,  the  Represen- 
tation for  each  State  having  one  Vote;  A  quorum  for  this  purpose 
shall  consist  of  a  Member  or  Members  from  two-thirds  of  the  States, 
and  a  Majority  of  all  the  States  shall  be  necessary  to  a  Choice.  In 
every  Case,  after  the  Choice  of  the  President,  the  Person  having 
the  greatest  Number  of  Votes  of  the  Electors  shall  be  the  Vice  Pres- 
ident. But  if  there  should  remain  two  or  more  who  have  equal 
Votes,  the  Senate  shall  chuse  from  them  by  Ballot  the  Vice-Pres- 
ident.]' 

3.  The  Congress  may  determine  the  Time  of  chusing  the  Elec- 

*  See   Amendment   XII. 


CONSTITUTION  OF  THE  UNITED  STATES.         471 

tors,  and  the  Day  on  which  they  shall  give  their  Votes ;  which  Day 
shall  be  the  same  throughout  the  United  States. 

4.  No  Person  except  a  natural  born  Citizen,  or  a  Citizen  of  the 
United  States,  at  the  time  of  the  Adoption  of  this  Constitution,  shall 
be  eligible  to  the  Office  of  President ;  neither  shall  any  Person  be 
eligible  to  that  Office  who  shall  not  have  attained  to  the  Age  of 
thirty  five  Years,  and  been  fourteen  Years  a  Resident  within  the 
United  States. 

5.  In  Case  of  the  Removal  of  the  President  from  Office,  or  of  his 
Death,  Resignation,  or  Inability  to  discharge  the  Powers  and  Duties 
of  the  said  Office,  the  same  shall  devolve  on  the  Vice  President,  and 
the  Congress  may  by  Law  provide  for  the  Case  of  Removal,  Death, 
Resignation,  or  Inability,  both  of  the  President  and  Vice  President, 
declaring  what  Officer  shall  then  act  as  President,  and  such  Officer 
shall  act  accordingly,  until  the  Disability  be  removed,  or  a  President 
shall  be  elected. 

6.  The  President  shall,  at  stated  Times,  receive  for  his  Services, 
a  Compensation,  which  shall  neither  be  encreased  nor  diminished 
during  the  Period  for  which  he  shall  have  been  elected,  and  he  shall 
not  receive  within  that  Period  any  other  Emolument  from  the 
United  States,  or  any  of  them. 

7.  Before  he  enter  on  the  Execution  of  his  Office,  he  shall  take 
the  following  Oath  or  Affirmation: — "I  do  solemnly  swear  (or  af- 
firm) that  I  will  faithfully  execute  the  Office  of  President  of  the 
United  States,  and  will,  to  the  best  of  my  Ability,  preserve,  protect 
and  defend  the  Constitution  of  the  United  States." 

y  Section  2. 

1.  The  President  shall  be  Commander  in  Chief  of  the  Army  and 
Navy  of  the  United  States,  and  of  the  Militia  of  the  several  States 
when  called  into  the  actual  Service  of  the  United  States ;  he  may 
require  the  Opinion,  in  writing,  of  the  principal  Officer  in  each  of 
the  executive  Departments,  upon  any  Subject  relating  to  the  Duties 
of  their  respective  Offices,  and  he  shall  have  Power  to  grant  Re- 
prieves and  Pardons  for  Offences  against  the  United  States,  except 
in  Cases  of  Impeachment, 

2.  He  shall  have  Power,  by  and  with  the  Advice  and  Consent  of 
the  Senate,  to  make  Treaties,  provided  tw^  thirds  of  the  Senators 
present  concur;  and  he  shall  nominate,  and  by  and  with  the  Advice 
and  Consent  of  the  Senate,  shall  appoint  Ambassadors,  other  public 
Ministers  and  Consuls,  Judges  of  the  supreme  Court,  and  all  other 
Officers  of  the  United  States,  whose  Appointments  are  not  herein 
otherwise  provided  for,  and  which  shall  be  established  by  Law :  but 
the  Congress  may  by  Law  vest  the  Appointment  of  such  inferior 


472  THE  AMERICAN  GOVERNMENT. 

Officers,  as  they  think  proper,  in  the  President  alone,  in  the  Courts 
of  Law,  or  in  the  Heads  of  Departments. 

3.  The  President  shall  have  Power  to  fill  up  all  Vacancies  that 
may  happen  during  the  Recess  of  the  Senate,  by  granting  Commis- 
sions which  shall  expire  at  the  End  of  their  next  Session. 

Section  3. 

He  shall  from  time  to  time  give  to  the  Congress  Information  of 
the  State  of  the  Union,  and  recommend  to  their  Consideration  such 
Measures  as  he  shall  judge  necessary  and  expedient;  he  may,  on 
extraordinary  Occasions,  convene  both  Houses,  or  either  of  them, 
and  in  Case  of  Disagreement  between  them,  with  Respect  to  the 
Time  of  Adjournment,  he  may  adjourn  them  to  such  Time  as  he 
shall  think  proper;  he  shall  receive  Ambassadors  and  other  public 
Ministers ;  he  shall  take  Care  that  the  Laws  be  faithfully  executed, 
and  shall  Commission  all  the  Officers  of  the  United  States. 

Section  4. 

The  President,  Vice  President  and  all  civil  Officers  of  the  United 
States,  shall  be  removed  from  Office  on  Impeachment  for,  and  Con- 
viction of,  Treason,  Bribery,  or  other  high  Crimes  and  Misde- 
meanors. 

ARTICLE  III. 
Section  i. 

The  judicial  Power  of  the  United  States,  shall  be  vested  in  one 
supreme  Court,  and  in  such  inferior  Courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish.  The  Judges,  both  of  the  su- 
preme and  inferior  Courts,  shall  hold  their  Offices  during  good  Be- 
haviour, and  shall,  at  stated  Times,  receive  for  their  Services,  a 
Compensation,  which  shall  not  be  diminished  during  their  Continu- 
ance in  Office, 

Section  2. 

1.  The  judicial  Power  shall  extend  to  all  Cases,  in  Law  and 
Equity,  arising  under  this  Constitution,  the  Laws  of  the  United 
States,  and  Treaties  made,  or  which  shall  be  made,  under  their  Au- 
thority;— to  all  Cases  affecting  Ambassadors,  other  public  Ministers 
and  Consuls  ; — to  all  Cases  of  admiralty  and  maritime  Jurisdiction ; — 
to  Controversies  to  which  the  United  States  shall  be  a  Party; — to 


CONSTITUTION  OF  THE  UNITED  STATES.        473 

Controversies  between  two  or  more  States ; — between  a  State  and 
Citizens  of  another  State; — between  Citizens  of  different  States; — 
between  Citizens  of  the  same  State  claiming  Lands  under  Grants  of 
different  States,  and  between  a  State,  or  the  Citizens  thereof,  and 
foreign  States,  Citizens  or  Subjects. 

2,  In  all  Cases  affecting  Ambassadors,  other  public  Ministers  and 
1/   Consuls,  and  those  in  which  a   State  shall  be   Party,  the  supreme 

Court  shall  have  original  Jurisdiction.  In  all  the  other  Cases  before 
mentioned,  the  supreme  Court  shall  have  appellate  Jurisdiction,  both 
as  to  Law  and  Fact,  with  such  Exceptions,  and  under  such  Regula- 
tions as  the  Congress  shall  make. 

3.  The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment,  shall 
be  by  Jury ;  and  such  Trial  shall  be  held  in  the  State  where  the  said 
Crimes  shall  have  been  committed ;  but  when  not  committed  within 
any  State,  the  Trial  shall  be  at  such  Place  or  Places  as  the  Congress 
may  by  Law  have  directed. 

Section  3. 

1.  Treason  against  the  United  States,  shall  consist  only  in  levying 
War  against  them,  or  in  adhering  to  their  Enemies,  giving  them 
Aid  and  Comfort.  No  Person  shall  be  convicted  of  Treason  unless 
on  the  Testimony  of  two  Witnesses  to  the  same  overt  Act,  or  on  Con- 
fession in  open  Court. 

2.  The  Congress  shall  have  Power  t3  declare  the  Punishment  of 
Treason,  but  no  Attainder  of  Treason  shall  work  Corruption  of 
Blood,  or  Forfeiture  except  during  the  Life  of  the  Person  attainted. 

ARTICLE  IV. 
Section  I. 

Full  Faith  and  Credit  shall  be  given  in  each  State  to  the  public 
Acts,  Records,  and  judicial  Proceedings  of  every  other  State.  And 
the  Congress  may  by  general  Laws  prescribe  the  Manner  in  which 
such  Acts,  Records,  and  Proceedings  shall  be  proved,  and  the  Effect 
thereof. 

Section  2.    " 

1.  The  Citizens  of  each  State  shall  be  entitled  to  all  Privileges 
and  Immunities  of  Citizens  in  the  several  States. 

2.  A  Person  charged  in  any  State  with  Treason,  Felony,  or  other 
Crime,  who  shall  flee  from  Justice,  and  be  found  in  another  State, 
shall  on  Demand  of  the  executive  Authority  of  the  State  from  which 


y 


474  THE  AMERICAN  GOVERNMENT. 

he  fled,  be  delivered  up  to  be  removed  to  the  State  having  jurisdic- 
tion of  the  Crime. 

3.  No  Person  held  to  Service  or  Labor  in  one  State,  under  the 
Laws  thereof,  escaping  into  another,  shall,  in  Consequence  of  any 
Law  or  Regulation  therein,  be  discharged  from  such  Service  or  La- 
bor, but  shall  be  delivered  up  on  Claim  of  the  Party  to  whom  such 
Service  or  Labor  may  be  due. 

Section  3. 

1.  New  States  may  be  admitted  by  the  Cong^ress  into  this  Union ; 
but  no  new  State  shall  be  formed  or  erected  within  the  Jurisdiction 
of  any  other  State ;  nor  any  State  be  formed  by  the  Junction  of  two 
or  more  States,  or  Parts  of  States,  without  the  Consent  of  the  Legis- 
latures of  the  States  concerned  as  well  as  of  the  Congress. 

2.  The  Congress  shall  have  Power  to  dispose  of  and  make  all 
needful  Rules  and  Regulations  respecting  the  Territory  or  other 
Property  belonging  to  the  United  States ;  and  nothing  in  this  Con- 
stitution shall  be  so  construed  as  to  Prejudice  any  Claims  of  the 
United  States,  or  of  any  particular  State. 

Section  4. 

The  United  States  shall  guarantee  to  every  State  in  this  Union 
a  Republican  Form  of  Government,  and  shall  protect  each  of  them 
against  Invasion ;  and  on  Application  of  the  Legislature,  or  of  the 
Executive  (when  the  Legislature  cannot  be  convened)  against  do- 
mestic Violence. 

ARTICLE  V. 

The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem 
it  necessary,  shall  propose  Amendments  to  this  Constitution,  or,  on 
the  Application  of  the  Legislatures  of  two  thirds  of  the  several  States, 
shall  call  a  Convention  for  proposing  Amendments,  which,  in  either 
Case,  shall  be  valid  to  all  Intents  and  Purposes,  as  Part  of  this  Con- 
stitution, when  ratified  by  the  Legislatures  of  three  fourths  of  the 
several  States,  or  by  Conventions  in  three  fourths  thereof,  as  the  one 
or  the  other  Mode  of  Ratification  may  be  proposed  by  the  Congress ; 
Provided  that  no  Amendment  which  may  be  made  prior  to  the  Year 
One  thousand  eight  hundred  and  eight  shall  in  any  Manner  affect 
the  first  and  fourth  Clauses  in  the  Ninth  Section  of  the  first  Article; 
and  that  no  State,  without  its  Consent,  shall  be  deprived  of  its  equal 
Suffrage  in  the  Senate. 


CONSTITUTION  OF  THE  UNITED  STATES.        475 
ARTICLE  VI. 

1.  All  Debts  contracted  and  Engagements  entered  into,  before  the 
Adoption  of  this  Constitution,  shall  be  as  valid  against  the  United 
States  under  this  Constitution,  as  under  the  Confederation. 

2.  This  Constitution,  and  the  Laws  of  the  United  States  which 
shall  be  made  in  Pursuance  thereof ;  and  all  Treaties  made,  or  which 
shall  b#  made,  under  the  Authority  of  the  United  States,  shall  be  the 
supreme  Law  of  the  Land ;  and  the  Judges  in  every  State  shall  be 
bound  thereby,  any  Thing  in  the  Constitution  or  Laws  of  any  State 
to  the  Contrary  notwithstanding. 

3.  The  Senators  and  Representatives  before  mentioned,  and  the 
Members  of  the  several  State  Legislatures,  and  all  executive  and 
judicial  Officers,  both  of  the  United  States  and  of  the  several  States, 
shall  be  bound  by  Oath  or  Affirmation,  to  support  this  Constitution ; 
but  no  religious  Test  shall  ever  be  required  as  a  Qualification  to  any 
Office  or  public  Trust  under  the  United  States. 

ARTICLE  VII. 

The  Ratification  of  the  Conventions  of  nine  States  shall  be  suffi- 
cient for  the  Establishment  of  this  Constitution  between  the  States 
so  ratifying  the  same. 

Done  in  Convention  by  the  Unanimous  Consent  of  the  States  pres- 
ent the  Seventeenth  Day  of  September  in  the  Year  of  our  Lord  one 
thousand  seven  hundred  and  Eighty  seven,  and  of  the  Independance . 
of  the  United  States  of  America  the  Twelfth.     In  Witness  whereof 
We  have  hereunto  subscribed  our  Names, 

Go:  Washington — 
Presidt.  and  Deputy  from  Virignia. 

The  Constitution  was  also  signed  by  thirty-eight  others, 
belonging  to  twelve  of  the  States,  and  casting  the  votes  of 
eleven  States,  and  was  attested  by  William  Jackson,  Secre- 
tary. 

ARTICLES  IN  ADDITION  TO,  AND  AMENDMENT  OF,  THE  CONSTITUTION 
OF  THE  UNITED  STATES  OF  AMERICA,  PROPOSED  BY  CONGRESS,  AND 
RATIFIED  BY  THE  LEGISLATURES  OF  THE  SEVERAL  STATES  PURSUANT 
TO  THE  FIFTH  ARTICLE  OF  THE  ORIGINAL  CONSTITUTION. 

The  history  of  these  articles  has  been  given  in  Chap- 
ters XL.  and  XLIX.,  but  the  days  on  which  they  were  pro- 


476  THE  AMERICAN  GOVERNMENT. 

posed  and  declared  ratified  may  be  recapitulated.  Articles 
I.-X.  ^inclusive,  September  25,  1789,  December  15,  1791 ; 
Article  XL,  September  5,  1794,  January  8,  1798;  Article 
XII.,  December  12,  1803,  September  25,  1804;  Article 
XIII.,  February  i,  1865,  December  18,  1865;  Article  XIV., 
June  16,  1866,  July  28,  1868;  Article  XV.,  February  27, 
1869,  March  30,  1870.  * 

ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establishment  of  reli- 
gion, or  prohibiting  the  free  exercise  thereof;  or  abridging  the  free- 
dom of  speech,  or  of  the  press ;  or  the  right  of  the  people  peaceably 
to  assemble,  and  to  petition  the  Government  for  a  redress  of  griev- 
ances. 

ARTICLE  II. 

A  well-regulated  Militia,  being  necessary  to  the  security  of  a  free 
State,  the  right  of  the  people  to  keep  and  bear  Arms,  shall  not  be 
infringed. 

ARTICLE  III. 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house,"  with- 
out the  consent  of  the  Owner,  nor  in  time  of  war,  but  in  a  manner 
to  be  prescribed  by  law. 

ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures,  shall 
not  be  violated,  and  no  Warrants  shall  issue,  but  upon  probable 
cause,  supported  by  Oath  or  affirmation,  and  particularly  describing 
the  place  to  be  searched,  and  the  persons  or  things  to  be  seized. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  in- 
famous crime,  unless  on  a  presentment  or  indictment  of  a  Grand 
Jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
Militia,  when  in  actual  service  in  time  of  War  or  public  danger ;  nor 
shall  any  person  be  subject  for  the  same  offence  to  be  twice  put  in 
jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any  Criminal 
Case  to  be  a  witness  against  himself,  nor  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law ;  nor  shall  private  property 
be  taken  for  public  use,  without  just  compensation. 


-:» 


CONSTITUTION  OF  THE  UNITED  STATES.        477 

ARTICLE  VI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and  dis- 
trict wherein  the  crime  shall  have  been  committed,  which  district 
shall  have  been  previously  ascertained  by  law,  and  to  be  informed 
of  the  nature  and  cause  of  the  accusation ;  to  be  confronted  with  the 
witnesses  against  him ;  to  have  compulsory  process  for  obtaining 
Witnesses  in  his  favor,  and  to  have  the  Assistance  of  Counsel  for  his 
defence. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall  ex- 
ceed twejity  dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and 
no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any  Court 
of  the  United  States,  than  according  to  the  rules  of  the  common  law. 

ARTICLE  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted. 

ARTICLE  IX. 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not 
be  construed  to  deny  or  disparage  others  retained  by  the  people. 

ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people. 

ARTICLE  XI. 

The  Judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against 
one  of  the  United  States  by  Citizens  of  another  State,  or  by  Citizens 
or  Subjects  of  any  Foreign  State. 

ARTICLE  XII. 

The  Electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  President  and  Vice-President,  one  of  whom,  at  least,  shall 


47^  THE  AMERICAN  GOVERNMENT. 

not  be  an  inhabitant  of  the  same  state  with  themselves;  they  shall 
name  in  their  ballots  the  person  voted  for  as  President,  and  in  dis- 
tinct ballots  the  person  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President,  and  of  all 
persons  voted  for  as  Vice-President,  and  of  the  number  of  votes  for 
each,  which  lists  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  seat  of  the  government  of  the  United  States,  directed  to  the 
President  of  the  Senate; — The  President  of  the  Senate  shall,  in  the 
presence  of  the  Senate  and  House  of  Representatives,  open  all  the 
certificates  and  the  votes  shall  then  be  counted ; — The  person  having 
the  greatest  number  of  votes  for  President  shall  be  the  President,  if 
such  number  be  a  majority  of  the  whole  number  of  Electors  ap- 
pointed; and  if  no  person  have  such  majority,  then  from  the  persons 
having  the  highest  numbers  not  exceeding  three  on  the  list  of  those 
voted  for  as  President,  the  House  of  Representatives  shall  choose 
immediately,  by  ballot,  the  President.  But  in  choosing  the  Presi- 
dent, the  votes  shall  be  taken  by  states,  the  representation  from  each 
state  having  one  vote ;  a  quorum  for  this  purpose  shall  consist  of  a 
member  or  members  from  two-thirds  of  the  states,  and  a  majority  of 
all  the  states  shall  be  necessary  to  a  choice.  And  if  the  House  of 
Representatives  shall  not  choose  a  President  whenever  the  right  of 
choice  shall  devolve  upon  them,  before  the  fourth  day  of  March 
next  following,  then  the  Vice-President  shall  act  as  President,  as  in 
the  case  of  the  death  or  other  constitutional  disability  of  the  Presi- 
dent. The-  person  having  the  greatest  number  of  votes  as  Vice- 
President,  shall  be  the  Vice-President,  if  such  number  be  a  majority 
of  the  whole  number  of  Electors  appointed,  and  if  no  person  have  a 
majority,  then  from  the  two  highest  numbers  on  the  list,  the  Senate 
shall  choose  the  Vice-President;  a  quorum  for  the  purpose  shall 
consist  of  two-thirds  of  the  whole  number  of  Senators,  and  a  ma- 
jority of  the  whole  number  shall  be  necessary  to  a  choice.  But  no 
person  constitutionally  ineligible  to  the  office  of  President  shall 
be  eligible  to  that  of  Vice-President  of  the  United  States. 

ARTICLE  XIII. 
Section  i. 

Neither  slavery  nor  involuntary  servitude,  except  as  a  punishment 
for  crime  whereof  the  party  shall  have  been  duly  convicted,  shall 
exist  within  the  United  States,  or  any  place  subject  to  their  juris- 
diction. 

Section  2. 

Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 


CONSTITUTION  OF  THE  UNITED  STATES.        479 
ARTICLE  XIV. 
^     Section  i. 

All  persons  born  or  naturalized  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of 
the  State  wherein  they  reside.  No  State  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States ;  nor  shall  any  State  deprive  any  person  of  life,  liberty, 
or  property,  without  due  process  of  law ;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws. 

Section  2. 

Representatives  shall  be  apportioned  among  the  several  States  ac- 
cording to  their  respective  numbers,  counting  the  whole  number  of 
persons  in  each  State,  excluding  Indians  not  taxed.  But  when  the 
right  to  vote  at  any  election  for  the  choice  of  electors  for  President 
and  Vice  President  of  the  United  States,  Representatives  in  Congress, 
the  Executive  and  Judicial  officers  of  a  State,  or  the  members  of  the 
Legislature  thereof,  is  denied  to  any  of  the  male  inhabitants  of  such 
State,  being  twenty-one  years  of  age,  and  citizens  of  the  United 
States,  or  in  any  way  abridged,  except  for  participation  in  rebellion, 
or  other  crime,  the  basis  of  representation  therein  shall  be  reduced  in 
the  proportion  which  the  number  of  such  male  citizens  shall  bear  to 
the  whole  number  of  male  citizens  twenty-one  years  of  age  in  such 
State. 

Section  3. 

No  person  shall  be  a  Senator  or  Representative  in  Congress,  or 
elector  of  President  and  Vice  President,  or  hold  any  office,  civil  or 
military,  under  the  United  States,  or  under  any  State,  who,  having 
previously  taken  an  oath,  as  a  member  of  Congress,  or  as  an  officer  of 
the  United  States,  or  as  a  member  of  any  State  legislature,  or  as  an 
executive  or  judicial  officer  of  any  State,  to  support  the  Constitution 
of  the  United  States,  shall  have  engaged  in  insurrection  or  rebellion 
against  the  same,  or  given  aid  or  comfort  to  the  enemies  thereof. 
But  Congress  may  by  a  vote  of  two-thirds  of  each  House,  remove 
such  disability. 

Section  4. 

The  validity  of  the  public  debt  of  the  United  States,  authorized 
by  law,  including  debts  incurred  for  payment  of  pensions  and  boun- 


48o  THE  AMERICAN  GOVERNMENT. 

ties  for  services  in  suppressing  insurrection  or  rebellion,  shall  not  be 
questioned.  But  neither  the  United  States  nor  any  State  shall  as- 
sume or  pay  any  debt  or  obligation  incurred  in  aid  of  insurrection  or 
rebellion  against  the  United  States,  or  any  claim  for  the  loss  or 
emancipation  of  any  slave ;  but  all  such  debts,  obligations  and  claims 
shall  be  held  illegal  and  void. 

Section  5. 

The  Congress  shall  have  power  to  enforce,  by  appropriate  legis- 
lation, the  provisions  of  this  article. 

ARTICLE  XV. 

Section  i. 

The  right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States  or  by  any  State  on  account 
of  race,  color,  or  previous  condition  of  servitude. 

Section  2. 

The  Congress  shall  have  power  to  enforce  this  article  by  appro- 
priate legislation. 


INDEX  OF  SUBJECTS. 


(See  also  Table  of  Contents,  pp.  vii,  viii.) 


Alaska,  331 

Albany   Congress  of   i7S4.   7© 

Amendments  to  Federal  Constitu- 
tion, 340-342,  352-368 

Appointing  Power,  274,  27s.  385 

Apportionment,  o£  Representatives 
in  Congress,  149,  15°.  JSS-IS7. 
364;  of  members  of  State  legisla- 
tures,  379,   380 

Army,  227,  228,  269,  279 

Articles  of  Confederation,  75,  ^^— 
81 

Attainder,  239,  315 

Ballot,  395 

Bankruptcies,  217 

Banking,  207,   208,  209 

Bills  of  Credit,  243 

Bill  of  Rights,    109,   355,  376 

Bonds,    199 

Cabinet,   289 

Capital  of  the   United  States,  230 

Causes  of  the  Revolutionary  Wa«, 
S3,  54 

Census,   153.    iS7 

City  Government,  405,  406,  407 

Civil  Service  Reform,  277 

Civil    War,    346-349 

Coinage,   199,  202,  203,  204 

Colonies,  planted,  25-35;  govern- 
ment of,  36—51;  independence,  52- 
63;  reorganized  as  States,  65,  66,  67 

Commerce,  Foreign  and  Interstate, 
211 

Committee  System  in  Congress,  192 

Common  Law,  309 

Compromises  of  the  Cohstitutiow, 
100,   loi,   103 

Confederation,  77-86 

Congress,  144-193;  general  powers 
of,    187-243 

AM.   GOV. — 31  (481 


Congressional  Districts,   165,    166 
Constitution,  Federal,  framed,  100— 
105;    ratified,     106-113;     goes    into 
operation,  114-116;  nature  of,  125— 
130;    sources    of,    131— 136;    in    out- 
line,   137—143;    provisions    of,    144— 
368;   ratification  of,  350,   351;   text 
of,  464 
Constitutional   Law,    318-322 
Constitutions,  Kinds  of,  31—23 
Constitutions,  State,   372—377 
Consuls,  280 

Continental   Congress,    73-76 
Copyrights,    222,    223 
County    Government,    40,    41,    402, 

403 

Counterfeiting,   219,   220 

Courts,  of  United  States,  292-322; 
of  States,  388—391;  Supreme  Court 
of  the  United  States,  301,  302;  Cir- 
cuit Courts,  293,  294,  303;  District 
Courts,  293,  294,  304;  Terri- 
torial Courts,  304;  appeals  from 
State  to  National  courts,  302;  con- 
current jurisdiction  of  State  and 
National  courts,  303 

Decisions  of  the  Supreme  Court: 
Dartmouth  College  Case,  244; 
Chisholm  v.  Georgia,  299;  Dred 
Scott  Decision,  359;  Marbury  v. 
Madison,  301;  McCulloch  v.  Mary- 
land, 129,  143;  Original  Package 
Decision,  213;   Texas  v.  White,  348 

Definitions:  "  Aristocracy,"  17; 
"Democracy,"  17;  "Monarchy," 
17;  "Republic,"  18;  "Society," 
10;  "Politics,"  11;  "State,"  12; 
"Nation,"  \2\  "Civil  Govern- 
ment,"  20 

Disputed  Elections,  254,  256,  257, 
as8 

) 


482 


THE  AMERICAN  GOVERNMENT. 


District  of  Columbia,  230,   331 
Duties  and  Imposts,  196 

Education,  State  systems,  411; 
State  boards,  413;  county  boards, 
414;  county  supervision,  415;  town 
and  district  administration,  415; 
city  administration,  415 

Elections,  392-399;  of  Representa- 
tives and  Senators,  164—169;  of 
President  and  Vice-President,  251- 
264;  of  State  officers,  384 

Emancipation    Proclamation,    360 

Embargo,  212 

Executive  Departments:  State, 
284;  Treasury,  285;  War,  286;  Jus- 
tice, 286;  Post  Office,  287;  Navy, 
287;  Interior,  288;  Agriculture, 
288;  Commerce  and  Labor,  289; 
State  Governments,  385 

Ex  post  facto  Laws,  240 

Federal  Convention,  87—105 
Federal  States,   420,   421 
Foreign    Affairs,    280 
Fortifications,  232 
Fugitives  from  Justice,  324,  325 

Gold  Standard,  206 

Gold  and  Silver   Certificates,   206 

Governors  of  States,  384 

Habeas  Corpus,  237,  328 
Hawaii,   331 

House  of  Representatives,  composi- 
tion    and     organization,      147-154; 

apportionment     of      representatives, 

ISS-I59.    364;    elections,     164-169; 

powers     and     rights     of,     170—186, 

254-256 

Impeachments,  170-175 
Implied  Powers,  232,   233 
Independence,    52-63 
Independent  Treasury,   209 
Inspection  Laws,   243 
Internal    Revenue,    196 
Inter-State   Commerce   Commission, 

212 
Invasion    and    Domestic    Violence, 

229.   237 

JtnxSES,  of  National  courts,  293, 
295,     296;     of     State     courts      344. 

390 
Judiciary  Act  of  1789,  293 


Jurisdiction,  of  National  courts, 
297—305;   of    State  courts,   390 

Legal   Tender   Act,   200 
Legislatures,  State,  378—383 
Letters  of  Marque,  226 
Lieutenant  Governors,   386 
Loans,    198 
Local   Government    in    the    colonies, 

38-49;  in  the  States,  401-407 
Loose  Construction,  233,  234,  235 

Messages:  Presidents',  281;  Govern- 
ors', 385 

Mexican  Annexation,  358 

Militia,  229,  230 

Mints,  206 

Missouri    Compromise,   357,    359 

Mixed  System  of  Local  Govern- 
ment, 42,  43,  404—407 

Money  Bills,   187,   188 

Money,  Coin  and  Paper,  211 

National  and  State  Governments, 
117-124,  346-349.  369-371.  420- 
424 

Naturalization,   215,   216 

Navigation,  214 

Navy,  227,  228,   269,   279 

New  States,  329,  333 

Nominating    Conventions,    262,    396 

Northwest   Territory,    331 

Ordinance  of  1787,  330 

Pardons  and   Reprieves,  269,  385 
Party  Machinery,  395-399 
Patent  Rights,  222,  224 
Penn's  Plan  of   Union,   69 
Philippine  Islands,   335 
Piracy,    225 

Police  Power  of  States,  214 
Political  Parties,  85,   112,   126,  233, 

261,   359 
Politics,    Science  of,   9-24 
Porto  Rico,  344 
Post   Office,    221 
Powers    divided    between     National 

AND    State   Governments,    119-12J 
Powers  of  Congress,   194—237 
Powers   of    Governors,    384,    385 
Powers   of    the    President,    269-283 
President,  248—250;  election  of,  251- 

268;  powers  and  duties  of,   269—283 
President    Hayes   on    Authority   of 

the  Executive,  290 


INDEX  OF  SUBJECTS. 


483 


President  Gabfield  on  Sphere  of 
States,   370 

Presidential  Succession,  266,  267 

Public  Land  Endowments  of  Com- 
mon  Schools,  413,  414 

Public  Ministers,  279,  282 

Reconstruction,   Amendments  XIII, 

XIV,   XV,   361-367 
Religious  Tests,  345,  39s 
Removals,  276,  277,  278 
Representatives,    in    Congress,    147, 

148;     Representative-at- Large,     167; 

in    State   legislatures,    378,    379 
Revolutionary  War,  52-63 

Schools,  common,  412;  high,  413; 
normal,  413;  agricultural  and  me- 
chanical colleges,  414;  State  uni- 
versities,  413 

Secession,  346,  348 

Senate,  United  States,  composi- 
tion and  organization  of,  160— 
163,  167,  168;  powers  and  rights 
of,   170-186 

Senate,  State,  378,  379 

Sessions  of  Congress,  168,  169,  281; 
of    State   legislatures,    381 

Silver  Legislation,  204,  205 

Slavery,  96,  99,  236,  332,  357,  359 

Speaker  of  House  of  Representa- 
tives, 151 

Specie  Payments  resumed,  202 

Sphere  of   States,    370 

Spoils  System,  277 

Stamp  Act  Congress,  70 

State   Constitutions,   372,   377 

State  Sovereignty,  346 


States,  and  Nation,  1 17-124;  (imita- 
tions of,  243-247;  rights  and  duties 
of,  323-326:  new  States,  327-330; 
guarantees  to,  336-339;  relations  to 
union,  369-371;  governments  of, 
372-391 
Strict  Construction,  233,  234,  235 
Suffrage  Qualifications,  392,  393 

Taxes,    194,    195,    197 

Territorial  System,   330—335 

Territorial  Growth,   330 

Texas  admitted,  357 

Theories  of  the  State,  14 

Tonnage,  214,  246 

Town   government,   38,   39,   401,  402 

Treason,  312—3:7 

Treasury    Notes,   201 

Treaties,    270—273 

Trial  by  jury,  306-311,  391 

Trusts,   213 

Union,  formation  of,  64—72;  limita- 
tions of,  236—242;  supremacy  of, 
343—345;  dependent  on  the  States, 
367;  relations  of  States  to,  369- 
371 

Vacancies:  House  of  Representa- 
tives,   151;   Senate,    162,   168 

Veto,  of  President,  189,  190;  of 
Governors,  384 

\'icE   President,    162,    257,   265 

War,  226 

Washington    inaugurated,    116 
Weights  and  Measures,   218 
Woman  Suffrage,  394 


BIBLIOGRAPHICAL  INDEX. 


Adams,   F.   S. — The  Swiss  Confedera-       Bureau    of    Education. — Report    of 


tion.     See   Cunningham. 

Adams,  H.  B. — Johns  Hopkins 
Studies  in  Historical  and  Political 
Science;  Contributions  to  American 
Educational    History. 

American  Commonwealths. —  Con- 
necticut, New  York,  Maryland, 
Virginia. 

American  Statesmen.  —  Hamilton, 
Jefferson,  Madison,  John  Adams, 
John  Marshall,  Samuel  Adams, 
Patrick  Henry,  Gouverneur  Morris, 
Washington,   Franklin,   and  Jay. 

Andrews,  I.  W. — New  Manual  of  the 
Constitution. 

Annals   of   Congress. 

Anson,  Sir  W.  R.— The  Law  and 
Custom  of   the   Constitution. 

Aristotle. — The    Politics. 

Atlantic  Monthly,  The,  April, 
1894. — ("The  Referendum  in 
Switzerland   and   America.") 

Bagehot,  Walter. — The  English 
Constitution. 

Bancroft,  George. — History  of  the 
United  States;  History  of  the  Con- 
stitution of  the  United  States. 

Benton,  T.  H. — Abridgment  of  the 
Debates   of   Congress. 

Bishop,  C.  F. — History  of  Elections 
in   the   American    Colonies. 

Boone,  R.  H. — Education  in  the 
United    States. 

BoRGEAUD,  Charles. — Adoption  and 
Amendment  of  Constitutions  in 
Europe   and   America. 

BouRiNOT,  J.  G. — A  Manual  of  the 
Constitutional  History  of  Canada 
from  the  Earliest  Period  to  the 
year  1888,  including  the  British 
North  American  Act. 

Brown,  Alexander. — The  Genesis  of 
the    United    States. 

Bryce,  Rt.  Hon.  James. — The  Amer- 
ican Commonwealth;  The  Holy 
Roman  Empire;  Teaching  Civic 
Duty.  (.The  Contemporary  Re- 
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Commissioner   for    1868. 

Burgess,  J.  W. — Political  Science 
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Burke,  Edmund. — Speech  on  Taxa- 
tion of  America;  Speech  on  Concil- 
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Calhoun,    J.    C. — Works    of. 

Campbell,  Douglas. — The  Puritan 
in  Holland,  England,  and  America. 

Chalmers,  George. — Political  Annals 
of    America. 

Coinage  Laws  of  the  United 
States,  1792-1894. — Fourth  edi- 
tion, prepared  under  the  direction 
of  the  Committee  on  Finance  of 
the  Senate. 

Compayre,  Gabriel.  —  Lectures  on 
Practical    Pedagogy. 

Compendium  of  the  United  States 
Census,  The,   1870. 

Congressional  Debates. — Annals  of 
Congress  and  Congressional  Rec- 
ord, inclusive. 

CoNKLiNG,  A.  R. — City  Government 
in   the   United   States. 

Cooley,  T.  M. — Constitutional  Limi- 
tations; Principles  of  Constitutional 
Law;  Comparative  Merits  of  Writ- 
ten  and    Prescriptive    Constitutions. 

CoXE,  Brinton. — Judicial  Power  and 
Unconstitutional    Legislation. 

Craik,  Henry,  The  English  Citi- 
zen.— A  series  of  Short  Books  on 
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Creehore,  C.  F. — The  Teaching  of 
Civics  in  the  Schools;  the  Founda- 
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Jenkins's  Bend:  A  Primary  Study 
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Cunningham,  C.  D. — The  Swiss 
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Currier,  C.  F.  A. — Constitution  and 
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(485) 


436 


THE  AMERICAN  GOVERNMENT. 


Curtis,  G.  T. — History  of  the  Con- 
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Davis,  J.  C.  B. — Appendix  to  the 
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Supreme  Court  of  the  United 
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Davis,   Jefferso.n. — Rise  and    Fall  of 

the    Confederate    Government. 
Dawson,    W.    H. — Germany    and    the 
Germans. 

Desty,  T.  D.— The  Constitution  of 
the  United  States;  Manual  of 
Practice  in  the  Courts  of  the 
United    States. 

Dicey,  A.  V. — Lectures  Introduc- 
tory to  the  Study  of  the  Law  of 
the    Constitution. 

Donaldson,  Thomas. — The  Public 
Domain. 

Doyle,  J.  A. — The  English  Colonies 
in  America.  I.  Virginia,  Maryland, 
and  the  Carolinas;  IL  and  IIL,  The 
Puritan  Colonies. 

DuRAND,  John. — Documents  on  the 
American  Revolution. 

Dunbar,  C.  F. — Laws  of  the  United 
States  Relating  to  Currency,  Fi- 
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Elliot,  Jonathan.- — Debates. 

Farrar,  Timothy. — Manual  of  the 
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Federalist,  THE.^(VVritten  by  Ham- 
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Fiske,  John.— American  Political 
Ideas;  The  Beginnings  of  New  Eng- 
land; The  Critical  Period  of  Ameri- 
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Some   Reference  to  its  Origins. 

Fonblanque,  Albany  de. — How  We 
are  Governed;  or.  The  Crown,  The 
Senate,  and  The  Bench. 

Freeman,  E.  A. — History  of  Federal 
Government;  Growth  of  the  Eng- 
lish Constitution;  Comparative  Poli- 
ties. 

FsoTHiNGKAU,  RiCHARD. — The  Rise  of 
the  Republic 

Galpin,  S.  a.— The  Minor  Political 
Divisions  of  the  United  States. 
(Statistical  Atlas  of  the  United 
States  with  Maps.) 

Garfield,  J.  A. — Works  of. 

GooDLOE,  D.  R. — The  Birth  of  the 
Republic. 

GooDNOw,  Frank. — Comparative  Ad- 
ministrative Law. 


Greene,    G.    W. — Historical    View    of 

the  American  Revolution. 
Green,   J.    R. — The   Making   of    Eng 
land;  History  of  the  English  People 
Guggenheimer,   J.    C. — The   Develop' 
ment  of  the  Executive  Departments, 
(Essays  in  the  Constitutional  Devel 
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by  J.  F.  Jameson.) 
Halford,  a.  J. — Official  Congressional 
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Hallam,  Henry. — Constitutional  His- 
tory of  England. 

Hamilton,  J,  C. — Editor  of  The  Fed- 
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Hare,  J.  I.  C. — American  Constitu- 
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Harris,  Dr.  W.  T.— The  Correlation 
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Hart,  A.  B. — Introduction  to  the 
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Harvard  Historical  Monographs. — 
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Hildreth,  Richard. — History  of  the 
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Hinsdale,  B.  A. — The  Old  Northwest; 
How  to  Teach  and  Study  History; 
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Hitchcock,  Henry. — American  State 
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Hough,  F.  B. — Constitutional  Provi- 
sions in  Regard  to  Education  in  the 
Several  States  of  the  American 
Union. 

Howard,  G.  E. — Local  Constitutional 
History    of   the    United    States. 

James,  E.  J. — The  Constitution  of 
Germany.      Translated. 

Jameson,  J.  A. — The  Constitutional 
Convention. 

Jameson,  J.  F. — The  Predecessor  of 
the  Supreme  Court.  (Essays  in  the 
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Jefferson,  Thomas. — Works  of. 

Jenks,  Edward. — An  Outline  of  Eng- 
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Johnston,  Alexander. — The  United 
States:  History  and  Constitution; 
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BIBLIOGRAPHICAL  INDEX. 


First  Century  of  the  Constitution 
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J887);  Also  numerous  articles  in 
Lalor's  Cyclopadia. 

Johns  Hopkins  University. — Studies 
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Journal  of  the  Federal  Convention. 
The. 

Journals  of  the  American  Congress, 
1774-1778,  The. 

Keltie,  J.  Scott. — The  Statesman's 
Year   Book. 

Kent,  James. — Commentaries  on 
American   Law. 

Knight,  G.  W. — History  and  Man- 
agement of  Land-Grants  for  Educa- 
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Lalor,  J.  J. — Cyclopaedia  of  Political 
Science,   etc. 

Landon,  J.  S.' — Constitutional  History 
and  Government  of  the  United 
States. 

Lanman,  Charles. — History  of  Con- 
gress,  1789-1793. 

Larneo,  J.  N. — History  for  Ready 
Reference,  etc 

Lebon,  Andre. — France  As  It   Is. 

Lecky,  \V.  E,  H. — History  of  Eng- 
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Lieber,  Dr.  Francis. — Civil  Liberty 
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Lincoln,  President. — First  Message 
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Linderman,  H.  R. — Money  and  Legal 
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Lodge,  H.  C. — A  Short  History  of 
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487 

Congres- 


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Parkman,  Francis. — Count  Frontenac 
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Phillimore,  Sir  Robert. — Commen- 
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Pollock,  Sir  Frederick. — Introduc- 
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Presidential   Counts,   The. 

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Reports  of  Decisions  of  the  United 
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ScHouLER,  James. — History  of  the 
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Secret  Journals  of  the  American 
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Shaw,  Albert. — Municipal  Govern- 
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Sidcwick,  Henry. — Elements  of  Poli- 
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488 


THE  AMERICAN  GOVERNMENT. 


Smith,  E.  P. — Movement  Towards  a 
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1788.  (.Essays  on  the  Constitutional 
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Smith,  Goldwin. — The  United  States. 

Spencer,  Herbert. — Education. 

Stanwood,  Edward. — History  of  Pres- 
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Stephens,  A.  H. — The  War  Between 
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Stevens,  E.  C. — Sources  of  the  Con- 
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Stubbs,  Bishop  W. — The  Constitu- 
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Sumner,  W.  G. — The  Financier  and 
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Alexander  Hamilton. 

Taylor,  Hannis. — Origin  and  Growth 
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Ten  Brook,  Andrew. — American  State 
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Thwaites,  R.  G.— The  Colonies.  (Ep- 
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Tiedeman,  E.  G. — The  Unwritten 
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Turner,  Samuel  E. — A  Sketch  of  the 
German  Empire  from  Early  Times 
to  the  Dissolution  of  the  Empire. 

United  States  Statutes  at  Largs. 


United  States  Civil  Service  Com- 
mission.— Tenth    Report   of. 

United  States  Supreme  Court  Re- 
ports. 

Vincent,    G.    E. — See   Small. 

Vincent,  J.  H. — State  and  Federal 
Government   in    Switzerland 

VoN  HoLST,  Dr.  H. — Constitutional 
and  Political  History  of  the  United 
States;  The  Constitution  of  the 
U.   S. 

VosE,  J.  E. — Methods  of  Instruction 
in  Civics.  (Education,  Vol.  VII., 
pp.  531  and  617.) 

Webster,   Daniel. — Works  of. 

Wharton,  Dr.  Francis. — Digest  of 
the  International  Law  of  the  United 
States. 

Wheaton,  Henry. — Elements  of  In- 
ternational Law. 

Wilson,  Woodrow. — The  State.  Ele- 
ments of  Historical  and  Practical 
Politics.  A  Sketch  of  Institutional 
History  and  Administration;  Con- 
gressional  Government. 

WiNSOR,  Justin. — Narrative  and  Crit- 
ical History  of  America. 

Woolsey,  T.  D. — International  Law; 
Political  Science. 

WooDBURN,  J.  A. — Causes  of  the 
American  Revolution.  (/.  H.  U. 
Studies  in  Historical  and  Political 
Science,  Fifth  Series.) 


QUESTIONS 

PREPARED  BY  THE  AUTHOR. 

I.  What  is  the  office  of  government?  2.  In  what  facts  does  the 
necessity  of  government  originate?  3.  What  is  political  science? 
4.  What  are  the  differences  between  the  state,  the  nation  and  the 
government?  5.  Define  the  three  kinds  of  government  recognized 
by  Aristotle.  6.  Define,  also,  mixed  government,  representative 
government,  the  republic,  centralized  and  dual  governments,  the 
forms  of  dual  government,  federal  government,  and  civil  govern- 
ment. 7.  What  is  a  constitutional  government?  8.  What  are  the 
respective  advantages  of  written  and  unwritten  constitutions?  (IN- 
TRODUCTION.) 

9.  What  were  the  London  and  Plymouth  Companies?  10. 
Name  the  colonies  planted  by  companies,  by  proprietors,  and  by 
groups  of  individuals.  11.  What  were  the  rights  that  the  charter 
of  1606  guaranteed  to  the  colonies?     (I.*) 

12,  Name  the  colonies  that  constituted  the  several  classes  at  the 
time  of  the  Revolution.  13.  What  were  their  common  political 
features  ?  14.  Describe  the  town  type,  the  county  type, .  and  the 
mixed  type  of  local  government.  15.  What  were  the  powers  of  the 
central  governments  of  the  colonies?  16.  What  were  the  civil,  the 
religious,  and  the  political  rights  of  the  colonies?     (II.) 

17.  Discriminate  between  the  cause  and  the  occasion  of  the  A^ar 
of  Independence.     (III.) 

18.  What  are  the  two  aspects  under  which  the  Declaration  of 
Independence  must  be  considered?  19.  What  was  its  most  promi- 
nent result?     (IV.) 

20.  What  powers  did  the  Continental  Congress  exercise?  21. 
Give  the  history  of  the  Articles  of  Confederation.     (V.) 

22.  What  is  the  difference  between  a  confederation  and  a  federal 
state?  23.  What  were  the  powers  of  the  Confederation?  24. 
What  were  the  defects  of  the  governments  of  1775-1789?  25.  What 
was  the  question  of  1786?     (VI.) 

26.  State  the  steps  leading  up  to  the  Federal  Convention  of  1787. 
(VII.) 

*  The  Roman  numerals  refer  to  chapters. 

(489) 


490  THE  AMERICAN  GOVERNMENT. 

27.  What  were  the  three  great  questions  before  the  Convention? 
Which  was  most  fundamental?  28.  What  were  the  aims  of  the 
National  party  and  the  State  party  respectively  ?  29.  What  was  the 
Virginia  plan?  The  Jersey  plan?  30.  What  were  the  aims  of  the 
Large-State  party  and  the  Small- State  party?     (VIII.) 

31.  What  are  the  three  compromises  of  the  Constitution?  32. 
Was  the  fundamental  question  answered  in  a  National  or  a  State 
way?     (IX.) 

33.  Divide  the  friends  of  the  Constitution  into  classes ;  also  its 
enemies.  34.  What  was  the  question  about  a  bill  of  rights?  35. 
State  the  different  ways  in  which  the  Articles  of  Confederation  and 
the  Constitution  were  ratified.  36.  What  was  the  Massachusetts 
plan  of  ratification?     Why  necessary?     (X.) 

2,"].  What  action  did  Congress  take  when  the  ratifications  of  nine 
States  had  been  reported?  38.  State  the  material  facts  attending 
the  inauguration  of  the  new  government.     (XI.) 

39.  What  is  meant  by  the  priority  of  the  States?  40.  By  the 
first  and  second  divisions  of  powers?  41.  Define  the  different  kinds 
of  powers;  inherent  and  delegated,  expressed  and  implied,  prohib- 
ited, reserved,  and  concurrent.     (XII.) 

42.  Is  the  general  government  a  National  system  or  a  State  sys- 
tem? 43.  What  are  the  ends  for  which  the  Constitution  was  or- 
dained as  expressed  in  the  preamble?  44.  What  sovereign  power 
ordains  the  Constitution?     (XIII.) 

45.  Define  the  fiat  and  the  organic  theories  of  the  Constitution. 
46.  What  are  the  three  departments  of  the  government,  and  what 
are  their  relations?     (XIV.) 

[At  this  stage  of  proceedings  it  is  recommended  that  the  student 
carefully  read  the  Constitution  through,  in  connection  with  the 
present  chapter.     See  the  Appendix,  X.] 

^7.  What  is  the  bicameral  system?  48.  What  is  the  true  theory 
of  representation?     (XVI.) 

49.  By  whom  are  Representatives  elected,  and  for  what  time? 
50.  What  are  their  qualifications?  51.  What  is  the  constitutional 
rule  for  apportioning  representation  among  the  States?  52.  What 
are  the  officers  of  the  House  of  Representatives,  and  how  are  they 
chosen?     (XVII.) 

SZ-  What  change  was  made  in  the  method  of  apportioning  Rep- 
resentatives in  1843?     (XVIII.) 

54.  How  is  the  Senate  made  up?  55.  What  are  the  qualifications 
of  Senators,  and  for  what  term  are  they  elected?  56.  Why  are 
they  divided  into  three  classes?  57.  Under  what  circumstances 
does  the  Vice  President  vote  in  the  Senate?     (XIX.) 

58.    What   are   the   general-ticket   plan   and   the  district  plan   of 


QUESTIONS.  491 

electing  Representatives?  59.  What  authority  does  the  districting? 
What  is  "gerrymandering"?  60.  What  are  the  main  points  of  the 
law  of  1866  relating  to  electing  Senators?     (XX.) 

61.  What  are  the  duties  of  the  House  of  Representatives  and  the 
Senate  respectively  in  an  impeachment  case?  62.  Who  may  be 
impeached,  and  for  what  offenses  ?  63.  What  authority  declares  the 
punishment?    How  far  may  it  go?     (XXI.) 

64.  What  is  a  quorum?  65.  What  are  the  different  modes  of 
voting  in  the  houses?     (XXII.) 

66.  What  are  the  material  facts  in  regard  to  paying  Senators  and 
Representatives  ?  67.  What  is  meant  by  being  "  privileged  "  from 
arrest,  and  not  being  "questioned,"  etc.?     (XXIII.) 

68.  Define  the  President's  relations  to  law  making.     (XXIV.) 

69.  Define  direct  and  indirect  taxes ;  duties,  imposts,  and  excises ; 
internal  revenue  and  income  tax.  70.  What  is  the  difference  be- 
tween a  national  bond  and  a  treasury  note?  71.  What  was  the 
legal-tender  act  of  1862?  72.  How  does  Congress  regulate  the 
value  of  money?  j^.  What  is  meant  by  the  ratio  of  15.898  to  i  (or 
popularly  16  to  i )  ?  74.  What  are  the  principal  features  of  the 
national  banking  system?  75.  What  is  meant  by  the  regulation  of 
commerce?  76.  What  are  the  duties  of  the  Interstate  Commerce 
Commissioti?  yj.  What  are  the  rules  governing  naturalization? 
78.  What  is  a  bankrupt  act?  79.  What  are  the  provisions  of  the 
Constitution  in  regard  to  weights  and  measures?  80.  How  is  coun- 
terfeiting punished  under  the  law?  81.  What  are  the  two  kinds  of 
post  offices?  82.  What  steps  are  taken  to  obtain  a  copyright?  A 
patent  right?  83.  What  are  piracies  and  felonies  on  the  high  seas 
and  offenses  against  the  laws  of  nations?  84.  What  is  the  differ- 
ence between  the  regular  army  and  the  militia?  85.  How  is  the 
District  of  Columbia  governed?  86.  What  is  the  doctrine  of  implied 
powers?  87.  What  are  the  principles  of  the  two  schools  of  consti- 
tutional construction  ?     (XXV.) 

88.  What  is  the  purpose  and  operation  of  the  writ  of  habeas 
corpus?  89.  What  are  bills  of  attainder  and  ex-post  facto  laws? 
90.  What  are  entering  and  clearing?  91.  What  are  the  rules  re- 
lating to  titles  of  nobility  and  presents  to  persons  holding  office? 
(XXVI.) 

92.  What  are  the  reasons  for  the  prohibitions  obtained  in  Clause 
I,  Section  10?  93,  How  do  these  prohibitions  affect  the  question  of 
State   sovereignty?     (XXVII.) 

94.  What  are  the  arguments  for  aiid  against  a  single  executive? 
(XXVIII.) 

95.  What  causes  led  to  Amendment  XII.  of  the  Constitution? 
(XXIX,) 


492  THE  AMERICAN  GOVERNMENT. 

96.  What  was  the  design  of  the  electoral  plan  for  electing  Presi- 
dent and  Vice  President?  97.  State  the  five  steps  in  the  election  of 
President  and  Vice  President.  98.  Under  what  circumstances  does 
the  House  of  Representatives  elect  Ihe  President  and  the  Senate  the 
Vice  President?  99.  What  are  the  rules  under  which  the  houses 
act  in  such  cases?     (XXX.) 

100.  Give  the  order  of  the  succession  in  case  of  the  death,  etc.,  of 
the  President.  loi.  Why  should  the  President's  salary  not  be  in- 
creased during  his  term?     (XXXI.) 

102.  What  are  the  steps  in  making  a  treaty?  103.  Why  should 
the  President  be  commander  in  chief  of  the  army  and  navy?  104. 
What  are  the  three  classes  of  officers  with  respect  to  the  mode  of 
their  appointment?  105.  What  is  the  part  of  the  President  and 
Senate  in  making  appointments?  106.  How  are  removals  made 
when  the  Senate  is  in  session?  When  it  is  not  in  session?  107. 
What  are  the  duties  of  public  ministers  and  consuls?     (XXXII.) 

108.  The  functions  of  the  executive  departments?  109.  What  is 
the  Cabinet?  and  what  are  its  relations  to  the  President.     (XXXIII.) 

no.  What  are  the  several  grades  of  United  States  courts  called? 
III.  What  are  the  rules  relating  to  the  judges'  tenure  of  office  and 
salary?     (XXXIV.) 

112.  How  far  does  the  judicial  power  extend?  113.  What  are 
the  several  kinds  of  jurisdiction?  114.  What  is  the  jurisdiction  of 
the  several  classes  of  courts?     (XXXV.) 

115.  What  are  the  functions  of  the  grand  and  petit  juries?  116. 
What  is  it  to  give  an  enemy  aid  and  comfort?  117.  What  is  now 
the  punishment  of  treason?  118.  What  is  the  limitation  in  respect 
to  attainder  of  treason  and  corruption  of  blood?     (XXXVI.) 

119.  What  is  a  constitutional  decision?  120.  What  is  an  un- 
constitutional law?     (XXXVIII.) 

121.  What  is  the  rule  in  regard  to  fugitives  from  justice? 
(XXXIX.) 

122.  What  are  the  differences  between  a  State  and  a  Territory? 
123.    How  is  a  new  State  admitted  to  the  Union?     (XL.) 

124.  How  is  domestic  violence  suppressed  in  ordinary  cases?  In 
extraordinary  cases?     (XLI.) 

125.  What  are  the  two  steps  to  be  taken  in  making  an  amend- 
ment to  the  Constitution?     (XLII.) 

126.  How  does  the  Constitution  of  the  United  States  guard  the 
weak  point  in  a  federal  system?     (XLIII.) 

127.  What  are  the  State-sovereignty  and  National  theories  of 
our  Constitution?     (XLIV.) 

128.  What  is  Article  VII.  of  the  Constitution?     (XLV.) 

129.  Why  are  the  first  ten  amendments  to  the  Constitution  called 


QUESTIONS.  493 

a  bill   of  rights?     130.    What  did   Amendment   XIII.   accomplish? 
XIV?    XV?     (XLVI.) 

131.  What  is  the  National  sphere  of  the  American  Government? 
The  State  sphere?     (XLVIII.) 

132.  In^what  points  do  the  later  State  constitutions  differ  from 
the  earlier  ones?  133.  How  are  limitations  imposed  on  the  State 
governments?     (L.) 

134.  Of  what  houses  are  the  State  legislatures  composed?  135. 
What  are  the  powers  of  the  houses  separately?     (LI.) 

136.  What  are  the  duties  of  a  governor?  137.  Name  the  State 
executive  departments.     (LII.) 

138.  What  are  the  various  classes  of  State  courts?     (LIII.) 

139.  What  are  the  ordinary  qualifications  for  exercising  the 
right  of  suffrage?  140.  In  what  States  have  women  this  right? 
(LIV.) 

141.  In  what  parts  of  the  country  are  the  three  systems  of  local 
government  found?  142.  What  is  a  New  England  town  meeting? 
143.  What  are  the  two  types  of  the  mixed  system?  144.  What 
are  the  principal  features  of  a  municipal  government?     (LV.) 

145.    What  is   the  range  of  education  provided  by  the   States? 

146.  What  are  the  leading  features  of  State  school  administration? 

147.  What  is  the  difference  between  the  town  and  district  systems? 

148.  From  what  sources  do  the  school  funds  come?     149.    What 
has  Congress  done  for  education  in  the  United  States?     (LVI.) 

150.  What  are  the  features  of  the  class  of  federal  states  to  which 
the  United  States  belong?  151.  What  do  we  mean  by  the  dual 
Constitution  of  the  United  States?  152.  What  are  the  relations  of 
the  State  side  and  the  National  side  of  the  American  Government? 
(CONCLUSION.) 


RODDY'S     GEOGRAPHIES 

By  JUSTIN  RODDY,  M.S.,  Department  of  Geography, 
First  Pennsylvania  State  Normal  School,  Millersville,  Pa. 


Elementary  Geography     .  i^o.50 


Complete  Geography  .     .  ^^i.oo 


THIS  **mformation"  series  meets  a  distinct  demand  for 
new  geographies  which  are  thoroughly  up  to  date,  and 
adapted  for  general  use,  rather  than  for  a  particular  use 
in  a  highly  specialized  and  organized  ideal  system.  While 
not  too  technical  and  scientific,  it  includes  sufficient  physio- 
graphic information  for  the  needs  of  most  teachers. 
^  An  adequate  amount  of  material  is  included  in  each  book 
to  meet  the  requirements  of  those  grades  forwhich  it  is  designed. 
This  matter  is  presented  so  simply  that  the  pupil  can  readily 
understand  .'t,  and  so  logically  that  it  can  easily  be  taught  by 
the  average  teacher. 

^  The  simplicity  of  the  older  methods  of  teaching  this  subject 
is  combined  with  just  so  much  of  the  modern  scientific  methods 
of  presentation  as  is  thoroughly  adapted  to  elementary  grades. 
Only  enough  physiography  is  included  to  develop  the  funda- 
mental relations  of  geography,  and  to  animate  and  fi-eshen  the 
study,  without  overloading  it  in  this  direction. 
•[[  The  physical  maps  of  the  grand  divisions  are  drawn  to  the 
same  scale,  thus  enabling  the  pupil  to  form  correct  concepts 
of  the  relative  size  of  countries.  The  political  and  more  de- 
tailed maps  are  not  mere  skeletons,  giving  only  the  names 
which  are  required  by  the  text,  but  are  full  enough  to  serve 
all  ordinary  purposes  for  reference.  In  addition,  they  show 
the  principal  railroads  and  canals,  the  head  of  navigation  on 
all  important  rivers,  and  the  standard  divisions  of  time. 
^  The  illustvations  are  new  and  fi"csh,  reproduced  mostiy 
from  photographs  collected  from  all  parts  of  the  world. 
Formal  map  studies  or  questions  accompany  each  map,  direct- 
ing attention  to  the  most  important  features.  ^ 


AMERICAN    BOOK     COMPANY 

Clio) 


HISTORICAL     READERS 

By  H.  A.  GUERBER 


Story  of  the  Thirteen  Colonies ^0.65 

Story  of  the  Great  Republic 65 

Story  of  the  English 65 

Story  of  the  Chosen  People 60 

Story  of  the  Greeks      ...  60 

Story  of  the  Romans 60 


ALTHOUGH  these  popular  books  are  intended  primarily 
XV  for  supplementary  reading,  they  will  be  found  quite  as 
valuable  in  adding  lift  and  interest  to  the  formal  study 
of  history.  Beginning  with  the  fifth  school  year,  they  can  be 
used  with  profit  in  any  of  the  upper  grammar  grades. 
^  In  these  volumes  the  history  of  some  of  the  world's  peoples 
has  taken  the  form  of  stories  in  which  the  principal  events  are 
centered  about  the  lives  of  great  men  of  all  times.  Through- 
out the  attempt  has  been  made  to  give  in  simple,  forceful  lan- 
guage an  authentic  account  of  famous  deeds,  and  to  present  a 
stirring  and  lifelike  picture  of  life  and  customs.  Stricdy  mili- 
tary and  political  history  have  never  been  emphasized. 
^  No  pains  has  been  spared  to  interest  boys  and  girls,  to 
impart  useful  information,  and  to  provide  valuable  lessons  of 
patriotism,  truthfulness,  courage,  patience,  honesty,  and  in- 
dustry, which  will  make  them  good  men  and  women.  Many 
incidents  and  anecdotes,  not  included  in  larger  works,  are 
interspersed  among  the  stories,  because  they  are  so  frequently 
used  in  art  and  literature  that  familiarity  with  them  is  in- 
dispensable. The  illustrations  are  unusually  good. 
^  The  author's  Myths  of  Greece  and  Rome,  Myths  of 
Northern  Lands,  and  Legends  of  the  Middle  Ages,  each, 
price  ^1.50,  present  a  fascinating  account  of  those  wonderful 
legends  and  tales  of  mythology  which  should  be  known  to 
everyone.   Seventh  and  eighth  year  pupils  will  delight  in  them. 


AMERICAN    BOOK     COMPANY 
(18) 


SCHOOL    CHEMISTRY 

|l.20 

By  ELROY  M.  AVERY,  Ph.D.,  LL.D. 


BY  THE  SAME  AUTHOR 

First  Lessons  in  Physical  Science  (Avery-Sinnott) ^.60 

Elementary  Physics i.oo 

School  Physics     .     .     • 1.25 


THIS  course  is  designed  to  meet  the  wants  of  all  secondary 
schools,  and  to  provide  a  satisfactory  text,  a  sufficient 
amount  of  individual  laboratory  work,  and  suitable 
lecture-table  demonstrations.  It  is  an  entirely  new  book,  con- 
taining the  results  of  the  most  recent  scientific  investigations, 
and  constructed  in  accordance  with  modern  methods  of 
teaching  this  subject.  The  work  has  been  arranged  as 
attractively  as  possible,  especially  at  the  beginning,  in  order  to 
secure  and  develop  the  interest  and  enthusiasm  of  the  pupil. 
Clearness  and  accuracy  of  statement  mark  the  definitions, 
directions,  and  explanations.  The  experiments  are  simple 
and  instructive,  easily  performed,  and  adapted  to  the  use  of 
inexpensive  and  easily  obtainable  apparatus. 
^  Unusual  space  is  devoted  to  chemistry  as  applied  to  im- 
portant industrial  processes,  such  as  the  manufacture  of  gas, 
iron,  steel,  soap,  soda,  etc.,  the  refining  of  petroleum,  etc. 
In  fact,  every  important  modern  topic  pertaining  to  the  science 
is  taken  up ;  the  practical  application  of  chemistry  to  the  affairs 
of  everyday  life,  such  as  the  contamination  of  water,  bread 
making,  the  fertilization  of  soils  by  the  action  of  nitrifying 
bacteria,  etc.,  is  given  due  attention. 

^  The  treatment  of  hydro-carbons  in  series  (including  the 
"organic"  compounds  of  the  old  chemistry)  is  unusually 
full,  systematic,  and  simple.  The  periodic  law  is  here  for 
the  first  time  in  an  elementary  text-book  given  full  statement, 
clear  explanation,  and  the  obedience  to  which  it  is  entitled. 


AMERICAN     BOOK     COMPANY 


WEBSTER'S 
SCHOOL    DICTIONARIES 

Revised  Editions 


T 


HESE  Dictionaries  have  been  tiioroughly  revised, 
entirely  reset,  and  made  to  conform  to  that  great  stand- 
ard authority — Webster's  International  Dictionary, 


WEBSTER'S  PRIMARY  SCHOOL  DICTION- 
ARY   ^0.48 

Containing  over  zo,ooo  words  and  meanings,  with  over 
400  illustrationg. 

WEBSTER'S  COMMON  SCHOOL  DICTION- 
ARY  ^0.72 

Containing  over  25,000  words  and  meanings,  with  over 
500  illustrations. 

WEBSTER'S  HIGH  SCHOOL  DICTIONARY,  ;^o.98 

Containing  about  37,000  words  and  definitions,  and  an 
appendix  giving  a  pronouncing  vocabulary  of  Biblical, 
Classical,  Mythological,  Historical,  and  Geographical  proper 
names,  with  over  800  illustrations. 

WEBSTER'S  ACADEMIC  DICTIONARY 

Cloth,  $1.50;  Indexed ;^i.8o 

Half  Calf,  52.75  ;  Indexed 3.00 

Abridged  directly  from  the  Intemadonal  Dictionary,  and 
giving  the  orthography,  pronunciations,  definitions,  and 
synonyms  of  about  60,000  words  in  common  use,  with  an 
appendix  containing  various  useful  tables,  with  over  800 
illustrations. 

SPECIAL  EDITIONS 

Webster's  Countinghouse  Dictionary.     Sheep, 

Indexed ^2.40 

Webster's  Handy  Dictionary 15 

Webster's  Pocket  Dictionary 57 

The  same.      Roan,  Flexible 69 

The  same.      Roan,  Tucks 78 

The  same.     Morocco,  Indexed    ...       .90 


AMERICAN     BOOK     COMPANY 
im) 


UNITED  STATES  HISTORIES 

By  JOHN  BACH  McMASTER,  Professor  of  American 
History,  University  of  Pennsylvania 


Primary  History     .     .     .  ;^.6o 


School  Hbtory .     .     .     .  |li.oo 


THESE  Standard  histories  are  remarkable  for  their  fresh- 
ness and  vigor,  their  authoritative  statements,  and  their 
impartial  treatment.  They  give  a  well-proportioned 
and  interesting  narrative  of  the  chief  events  in  our  history, 
and  are  not  loaded  down  with  extended  and  unnecessary 
bibliographies.  The  illustrations  are  historically  authentic, 
and  show,  besides  well-known  scenes  and  incidents,  the  im- 
plements and  dress  characteristic  of  the  various  periods.  The 
maps  are  clear,  and  full,  and  well  executed. 
^  The  PRIMARY  HISTORY  is  simply  and  interestingly 
written,  with  no  long  or  involved  sentences.  Although  brief, 
it  touches  upon  all  matters  of  real  importance  to  schools  in 
the  founding  and  building  of  our  country,  but  topics  beyond 
the  understanding  of  children  are  omitted.  The  summaries 
at  the  end  of  the  chapters,  besides  serving  to  emphasize  the 
chief  events,  are  valuable  for  review. 

^  In  the  SCHOOL  HISTORY  judgment  and  skill  are 
shown  in  the  selection  of  material,  and  in  the  space  given 
to  each  topic.  By  far  the  larger  part  of  the  book  has  been 
devoted  to  the  history  of  the  United  States  since  1 783.  From 
the  beginning  the  attention  of  the  student  is  directed  to  causes 
and  results  rather  than  to  isolated  events. 
^  Special  prominence  is  given  to  the  social  and  economic 
development  of  the  country,  to  the  domestic  life  and  institu- 
tions of  the  people,  and  to  such  important  topics  as  the 
growth  of  inventions,  the  highways  of  travel  and  commerce, 
and  the  progress  of  the  people  in  art,  science,  and  literature. 
Brief  summaries,  tabular  synopses,  explanatory  notes,  and 
suggestions  for  supplementary  reading,  are  provided. 


AMERICAN    BOOK    COMPANY 

C116) 


CARPENTER'S 
GEOGRAPHICAL    READERS 

By  FRANK  G.  CARPENTER 


North  America 
South  America 
Europe     . 
Asia  .     .     .     . 


$0.60 
.60 
.70 
.60 


Africa j(o.6o 

Australia,  Our  Colonies, 
and  Other  Islands  of 
the  Sea 60 


THE  purpose  of  Carpenter's  Geographical  Readers  is  to 
supplement  the  regular  text-books  on  the  subject,  giving 
life  and  interest  to  the  study.  In  this  way  they  accom- 
plish two  separate  purposes — they  afford  valuable  instruction 
m  geography,  and  provide  drill  in  reading. 
^  The  books  are  intensely  absorbing — they  were  written  by 
Mr.  Carpenter  on  the  spots  described,  and  present  an  accurate 
pen-picture  of  places  and  people.  The  style  is  simple  and 
easy,  and  throughout  each  volume  there  runs  a  strong  personal 
note  which  makes  the  reader  feel  that  he  is  actually  seeing 
everything  with  his  own  eyes. 

^  As  advocated  by  leading  educators,  attention  is  directed 
principally  to  the  various  peoples,  their  strange  customs  and 
ways  of  living,  and  to  some  extent  to  their  economic  condi- 
tion. At  the  same  time,  there  is  included  a  graphic  description 
of  the  curious  animals,  rare  birds,  wonderful  physical  features, 
natural  resources,  and  great  industries  of  each  country. 
^  The  numerous  illuctrations  and  maps  deserve  special  men- 
tion. The  illustrations  for  the  most  part  are  reproductions  of 
photographs  taken  by  the  author,  and  are  in  perfect  harmony 
with  the  text.  The  maps  showing  the  route  taken  over  each 
continent  are  one  of  the  best  features  of  the  series. 
^  The  publication  of  this  series  has  been  a  distinct  relief  to 
teachers.  No  longer  is  the  study  of  geography  dry  and  mean- 
ingless, no  longer  is  it  a  waste  of  time.  Since  the  appear- 
ance of  the  first  volume.  Carpenter's  Readers  have  met  with  an 
extraordinary  success  throughout  the  country. 


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(15) 


APPLIED    PHYSIOLOGIES 

By   FRANK   OVERTON,    A.M.,    M.D.,    late   House 
Surgeon  to  the  City  Hospital,  New  York  City- 


Primary  Physiology  .    .    .  $0.30         Intermediate  Physiology    .  $0.50 
Advanced  Physiology    .     .  $0.80 


OVERTON'S  APPLIED  PHYSIOLOGIES  form  a 
series  of  text-books  for  primary,  grammar,  and  high 
schools,  which  departs  radically  from  the  old-time 
methods  pursued  in  the  teaching  of  physiology.  These  books 
combine  the  latest  results  of  study  and  research  in  biological, 
medical,  and  chemical  science  with  the  best  methods  of 
teaching. 

^  The  fundamental  principle  throughout  this  series  is  the 
study  of  the  cells  where  the  essential  functions  of  the  body 
are  carried  on.  Consequently,  the  study  of  anatomy  and 
physiology  is  here  made  the  study  of  the  cells  from  the  most 
elementary  structure  in  organic  life  to  their  highest  and  most 
complex  form  in  the  human  body. 

•[[  This  treatment  of  the  cell  principle,  and  its  development 
in  its  relation  to  life,  the  employment  of  laboratory  methods, 
the  numerous  original  and  effective  illustrations,  the  clearness  of 
the  author's  style,  the  wealth  of  new  physiological  facts,  and  the 
logical  arrangement  and  gradation  of  the  subject-matter,  give 
these  books  a  strength  and  individuality  peculiarly  their  own. 
^  The  effects  of  alcohol  and  other  stimulants  and  narcotics 
are  treated  in  each  book  sensibly,  and  with  sufficient  fullness. 
But  while  this  important  form  of  intemperance  is  singled  out, 
it  is  borne  in  mind  that  the  breaking  of  any  of  nature's  laws 
is  also  a  form  of  intemperance,  and  that  the  whole  study  of 
applied  physiology  is  to  encourage  a  more  healthful  and  a 
more  self-denying  mode  of  life. 

^  In  the  preparation  of  this  series  the  needs  of  the  various 
school  grades  have  been  fully  considered.  Each  book  is  well 
suited  to  the  pupils  for  whom  it  is  designed. 


AMERICAN    BOOK    COMPANY 


J 


(150D 


BOTANY     ALL     THE     YEAR 
ROUND 

By  E.   F.  ANDREWS,  High   School,  Washington,   Ga. 


Edition  with  Flora  .     .     .  $1.50 


Edition  without  Flora  .     .  ;$i.oo 


THIS  book  has  been  prepared  with  the  view  to  encour- 
aging the  study  of  botany  in  schools  where  it  is  now 
neglected  for  want  of  a  method  suited  to  their  needs. 
It  is  intended  especially  for  schools  not  having  a  highly 
organized  system  of  instruction,  and  can  be  used  without 
difficulty  by  teachers  who  have  had  no  special  training.  For 
the  most  part  the  experiments  described  are  very  simple,  and 
can  be  performed  with  homemade  appliances  within  the  reach 
of  any  school.  While  the  treatment  is  distinctly  practical  and 
scientific,  the  language  is  simple  and  direct,  and  botanical 
terms  are  introduced  only  as  required. 

^  The  lessons  are  arranged  according  to  the  seasons,  so  that 
each  subject  will  be  taken  up  at  just  the  time  of  the  year  when 
material  for  it  is  most  easily  obtainable.  The  leaf  has  been 
selected  as  the  starting  point,  followed  in  turn  by  fruits, 
seeds  and  seedlings,  roots  and  underground  stems,  buds  and 
branches,  and  finally  flowers.  The  chapter  on  ecology,  the 
studies  of  a  few  typical  cryptogams,  the  practical  questions  at 
the  end  of  each  topic,  and  the  suggestions  for  field  work  at 
the  close  of  each  chapter,  form  vital  features. 
^  The  Flora,  which  has  been  prepared  especially  for  use  in 
connection  with  Andrews's  Botany,  gives  descriptions  of  over 
1,200  species,  covering  the  flowering  plants,  wild  and  culti- 
vated, which  are  most  frequendy  seen  in  the  eastern  half  of 
the  United  States.  Each  plant  is  described  so  exactly  and 
fully  as  to  enable  the  beginner  to  determine  readily  and 
accurately  its  genus  and  species.  Because  the  Flora  is  brief, 
it  is  easy  to  use,  and  does  not  discourage  the  young  pupil  with 
a  mukitude  and  diversity  of  plants. 


AMERICAN     BOOK    COMPANY 

C.75) 


MELODIC    MUSIG    SERIES 

By  FREDERIC  H.  RIPLEY,  Principal  of  the  LongfeUow 
School,  Boston,  and  THOMAS  TAPPER,  Lecturer  on 
Music  in  the  Institute  of  Musical  Art  of  the  City  of 
New  York. 


First  Reader      ....  J50.25 
Second  Reader 30 


Third  Reader   ....  $0.40 
Fourth  Reader 50 


THE  Melodic  Music  Series  presents  a  maximum  number 
of  choice  songs  and  a  minimum  amount  of  teaching. 
It  does  not  require  the  use  of  any  charts,  and  is  especially 
designed  for  those  schools  in  which  a  book  for  two  grades  is 
desired.  So  few  are  the  directions  needed  for  carrying  on 
the  work,  so  simple  is  the  arrangement,  and  so  easy  the 
gradation,  that  the  course  can  be  conducted  without  difficulty 
by  teachers  who  have  had  but  little  experience  in  teaching 
music. 

^\  From  beginning  to  end  there  is  a  consistently  developed 
plan.  The  song  element  is  made  the  basis  of  study,  each 
idea  being  incorporated  in  a  melody  by  means  of  which  it  is 
firmly  fixed  in  the  learner's  mind.  The  books  afford  an 
adequate  presentation  of  forms,  and  a  simple  and  natural  de- 
velopment in  rhythm,  chromatics,  and  minor  and  part-writing. 
There  is  a  graded  series  of  lessons  in  tone-study,  and  no  de- 
parture is  made  fi"om  correct  terminology  and  from  music  nota- 
tion. The  words,  which  are  especially  fitted  for  each  grade, 
pertain  to  the  child-world,  and  are  cheerful  and  interesting. 
The  pages  are  clear  and  open — not  crowded. 
^]  These  readers  are  rich  in  bright,  happy  songs,  which  are 
suitable,  not  merely  for  general  use,  but  for  special  days,  festi- 
vals, and  seasons  as  well.  In  addition  to  selections  from  the 
works  of  classical  composers  and  a  large  number  of  folk-songs, 
the  books  contain  a  noteworthy  collection  of  songs  contributed 
especially  for  this  course.  Never  before  have  so  many  choice, 
original  songs  been  brought  together  in  a  series  of  this  kind. 


AMERICAN     BOOK     COMPANY 


(143) 


THE    GATEWAY   .  SERIES 

HENRY  VAN  DYKE,  General  Editor 


Shakkspeare's  Merchant  of  Venice.     Felix  E.  Schelling,  University  of 

Pennsylvania.     $o.  35. 
Shakespeare's  Julius  Caesar.     Hamilton  W.  Mabie,  ♦'The  Outlook." 

i5o.3S. 
Shakespeare's  Macbeth.    T.  M.  Parrott,  Princeton  University.   J0.40. 
Milton's  Minor  Poems.     M.  A.  Jordan,  Smith  College,     $0.35. 
Addison's  Sir  Roger  de  Coverlev  Papers.     C.  T.  Winchester,  Wes- 

leyan  University.     5<3.4o. 
Goldsmith's  Vicar  of  Wakefield.     James  A.  Tufts,   Phillips  Exeter 

Academy.      $0.45. 
Burke's   Speech     on    Conciliation.        William     MacDonald,    Brown 

University.     $0.35. 
Coleridge's    Ancient   Mariner.       George    E.    Woodberry,    Columbia 

University.      $0.30. 
Scott's  Ivanhoe.      Francis  H.  Stoddard,  New  York  University,  J^o.50. 
Scott's   Lady    or  the  Lake.       R.    M.   Alden,     Leland   Stanford  Jr. 

University.      5o-4'^- 
Macaulay's  Milton.      Rev.    E.    L.     Gulick,    Lawrenceville    School. 

^.35- 
Macaulay's  Addison.    Charles  F.  McClumpha,  Univeraty  of  Minnesota. 

$0.35. 
Macaulay's  Addison  and  Johnson.      In  one  volume  (McClumpha  and 

Clark).     $0.4.^. 
Macaulay's  Life  of  Johnson.     J.  S.  Clark,  Northwestern  University. 

150.35. 
Carlyle's  Essay  on  Burns.      Edwin    Mims,    Trinity    College,    North 

Carolina.      $0. 3  5 . 
George    Eliot's    Silas     Marner.       W.    L.    Cross,    Yale    University. 

^0.40. 
Tennyson's  Princess.      K.  L.  Bates,  Welleslcy  College.     $0.40. 
Tennyson's  Gareth  and  Lynette,  Lancelot  and  Elaine,  and  The 

Passing   of   Arthur.       Kenry   van    Dyke,    Princeton    University. 

I0.35. 
Emerson's  Essays.      Henry  van  Dyke,  Princeton  University.     ^.35. 
Franklin's    Autobiography.       Albert     Henry    Smyth,    Central    High 

School,  Philadelphia. 
Gaskell's    Cranford.      Charles    E.    Rhodes,    Lafayette    High    School, 

Buffalo.     |k}.40. 


AMERICAN     BOOK    COMPANY 

(99) 


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